JUSTICE K. S. PUTTASWAMY (RETD.)versusUNION OF INDIA & ORS.

 JUSTICE K. S. PUTTASWAMY
                    [2018] 8 S.C.R.
                              (RETD.)
                                    1 v. UNION OF INDIA                   1


        JUSTICE K. S. PUTTASWAMY (RETD.) & ANR.                           A
                                  v.
                    UNION OF INDIA & ORS.
                (Writ Petition (Civil) No. 494 of 2012)
                       SEPTEMBER 26, 2018                                 B
 [DIPAK MISRA, CJI, A. K. SIKRI, A. M. KHANWILKAR,
 DR. D. Y. CHANDRACHUD AND ASHOK BHUSHAN, JJ.]
        Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.7 – Whether the Aadhaar Act
                                                                          C
violates right to privacy and is unconstitutional on this ground and
whether invasion into right to privacy meets the three fold test as
laid down in Puttaswamy case – Held: Enrolment in Aadhaar
assumes the character of compulsory enrolment for those who want
to avail the benefits under s.7 – Likewise, authentication, as
mentioned in s.8, also becomes imperative – The Parliament has            D
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 laid down in Puttaswamy case i.e. requirement of law
stands satisfied – Aadhaar Act serves legitimate state aim and thus
fulfills the second requirement also – In the Statement of Objects
                                                                          E
and Reasons, it is inter alia mentioned that though number of social
benefits schemes have been floated by the Government, the failure
to establish identity of an individual has proved to be a major
hindrance for successful implementation of those programmes as it
was becoming difficult to ensure that subsidies, benefits and services
reach the intended beneficiaries in the absence of a credible system      F
to authenticate identity of beneficiaries – The rationale behind s.7
lies in ensuring targeted delivery of services, benefits and subsidies
which are funded from the Consolidated Fund of India – In discharge
of its solemn Constitutional obligation to enliven the Fundamental
Rights of life and personal liberty (Art.21) to ensure Justice, Social,
                                                                          G
Political and Economic and to eliminate inequality (Art.14) with a
view to ameliorate the lot of the poor and the Dalits, the Central
Government has launched several welfare schemes – These schemes
involved 3% of the GDP and a huge amount of public money –
Right to receive these benefits, from the point of view of those who
                                                                          H
                                  1
2            SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A   deserve the same, has now attained the status of fundamental right
    based on the same concept of human dignity – 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
    are predominantly or at least equally geared to “secure to all its
    citizens”, especially, to the downtrodden, poor and exploited,
B
    justice, liberty, equality and “to promote” fraternity assuring dignity
    – Aadhaar Act meets the test of proportionality as the following
    components of proportionality stand satisfied – A measure restricting
    a right must have a legitimate goal (legitimate goal stage) – It must
    be a suitable means of furthering this goal (suitability or rationale
C   connection stage) – There must not be any less restrictive but equally
    effective alternative (necessity stage) – The measure must not have
    a disproportionate impact on the right holder (balancing stage).
    (Majority Opinion)
           Aadhaar (Targeted Delivery of Financial and other Subsidies,
D   benefits and services) Act, 2016: Whether Aadhaar Act strikes a
    fair balance between the two fundamental rights, right to privacy
    on the one hand and right to food, shelter and employment on the
    other hand – Held: 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 – As the information collected at the
E   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, namely, dignity in
    the form of autonomy (informational privacy) and dignity in the
    form of assuring better living standards of the same individual,
F   balancing at the second level is also met – Enrolment in Aadhaar of
    the unprivileged 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
G   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 – Jurisprudence. (Majority Opinion)


H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          3


      Aadhaar (Targeted Delivery of Financial and other Subsidies,           A
benefits and services) Act, 2016: Architecture and structure of the
Act – 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
                                                                             B
enrolment and assigning Aadhaar numbers, enrolling agencies are
recruited by the Authority, which may be a private body/person– 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        C
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 government, the government can mandate that receipt of
these subsidies, benefits and services would be given only on
                                                                             D
furnishing proof of possession of Aadhaar number (or proof of
making an application for enrolment, where Aadhaar number is
not assigned) – Such individual would undergo authentication at
the time of receiving such benefits etc. – A particular institution/
body from which the said subsidy, benefit or service is to be claimed
by such an individual, the intended recipient would submit his               E
Aadhaar number and is also required to give her biometric
information to that agency – On receiving this information and for
the purpose of its authentication, the said agency, known as
Requesting Entity (RE), would send the request to the Authority which
shall perform the job of authentication of Aadhaar number – On
                                                                             F
confirming the identity of a person, the individual is entitled to receive
subsidy, benefit or service – Aadhaar number is permitted to be
used by the holder for other purposes as well. (Majority Opinion)
      Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Whether the Aadhaar Project
creates or has tendency to create surveillance state and is, thus,           G
unconstitutional on this ground – Held: The architecture of Aadhaar
as well as the provisions of the Aadhaar Act do not tend to create a
surveillance state – This is ensured by the manner in which the
Aadhaar project operates – Authentication is a process by which
                                                                             H
4            SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A   Aadhaar number along with demographic information or biometric
    information of an individual is submitted to the CIDR for its
    verification – On submission thereof, the CIDR verifies the
    correctness or lack of it – While seeking authentication, neither the
    location of the person whose identity is to be verified nor the purpose
    for which authentication of such identity is required, comes to the
B
    knowledge of the Authority. (Majority Opinion)
           Aadhaar (Targeted Delivery of Financial and other Subsidies,
    benefits and services) Act, 2016: Salient features of Aadhaar Scheme
    – Aadhaar authentication service – Whether there is risk of misuse
    of vital information pertaining to an individual – Held: During the
C   enrolment 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 – The
    information collected remains in silos – Merging of silos is prohibited
    – The requesting agency is provided answer only in ‘Yes’ or ‘No’
D   about the authentication of the person concerned – The
    authentication process is not exposed to the Internet world – Security
    measures, as per the provisions of s.29(3) r/w s.38(g) as well as
    Regn 17(1)(d) of the Authentication Regulations, are strictly followed
    and adhered to – During authentication, no information about the
    nature of transaction etc. is obtained – The Authority has mandated
E   use of Registered Devices (RD) for all authentication requests –
    With these, 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
F   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 Regn 17(1)(a) of the Authentication Regulations – The
G   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
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      5


only know from which device the authentication has happened,             A
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
                                                                         B
purpose of authentication under s.32(3) of the Aadhaar Act.
(Majority Opinion)
       Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.7 – Whether enrolment in Aadhaar
is voluntary or mandatory – Held: As per s.7 of the Aadhaar Act in
case an individual wants to avail any subsidy, benefit or services,      C
she is required to produce the Aadhaar number and, therefore, it
virtually becomes compulsory for such a person – Therefore, even
if enrolment in Aadhaar is voluntary, it assumes the character of
compulsory enrolment for those who want to avail the benefits under
s.7. (Majority Opinion)                                                  D
       Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Invalidation of the Act on argument
based on probabilistic system of Aadhaar, leading to ‘exclusion’ –
Correctness of – Held: The Authority has claimed that biometric
accuracy is 99.76% – If the Aadhaar project is shelved, 99.76%           E
beneficiaries are going to suffer – 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. (Majority
Opinion)                                                                 F

      Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.7 – Scope of – Subsidies, services
and benefits – Held: The Government cannot enlarge the scope of
subsidies, services and benefits – ‘Benefits’ should be such which
are in the nature of welfare schemes for which resources are to be       G
drawn from the Consolidated Fund of India – A benefit which is
earned by an individual (e.g. pension by a government employee)
cannot be covered under s.7 of the Act, as it is the right of the
individual to receive such benefit – Notifications which are issued
                                                                         H
6            SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A   under s.7 of the Aadhaar Act 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 – The ‘benefits’ and ‘services’ as mentioned
    in s.7 should be those which have the colour of some kind of
B
    subsidies etc., namely, welfare schemes of the Government whereby
    Government is doling out such benefits which are targeted at a
    particular deprived class. (Majority Opinion)
           Aadhaar (Targeted Delivery of Financial and other subsidies,
    benefits and services) Act, 2016: ss.7 and 8 – Enrolment of children
C   – Whether children can be brought within the sweep of ss.7 and 8
    of the Act – On attaining the age of majority, such children who are
    enrolled under Aadhaar with the consent of their parents, shall be
    given the option to exit from the Aadhaar project if they so choose
    in case they do not intend to avail the benefits of the scheme –
D   Insofar as the school admission of children is 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 Art.21A of the Constitution, school admission
    cannot be treated as ‘benefit’ as well – Benefits to children between
E   6 to 14 years under Sarv Shiksha Abhiyan, likewise, shall not require
    mandatory Aadhaar enrolment – For availing the benefits of other
    welfare schemes which are covered by s.7 of the Aadhaar Act, though
    enrolment number can be insisted, it would be subject to the consent
    of the parents – No child shall be denied benefit of any of these
F   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 – Constitution of India – Art.21A.
    (Majority Opinion)
          Aadhaar (Targeted Delivery of Financial and other subsidies,
G   benefits and services) Act, 2016: s.2(d) – Constitutionality of – Held:
    s.2(d) pertains to authentication records, such records would not
    include metadata as mentioned in Regn 26(c) of the Aadhaar
    (Authentication) Regulations, 2016 – Therefore, this provision in
    the present form is struck down. (Majority Opinion)

H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                       7


      Aadhaar (Targeted Delivery of Financial and other subsidies,        A
benefits and services) Act, 2016: s.2(b) – Definition of resident –
Apprehension expressed by the petitioners was that it should not
lead to giving Aadhaar card to illegal immigrants – Respondent are
directed to take suitable measures to ensure that illegal immigrants
are not able to take such benefits. (Majority Opinion)
                                                                          B
      Aadhaar (Targeted Delivery of Financial and other subsidies,
benefits and services) Act, 2016: s.2(l) – Enrolling agency – s.2(l)
challenged 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 – Held: Having regard to          C
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, there is no basis of the apprehension
expressed by the petitioners. (Majority Opinion)                          D
      Aadhaar (Targeted Delivery of Financial and other subsidies,
benefits and services) Act, 2016: s.29 – Constitutionality of – Held:
s.29 imposes a restriction on sharing information and is, therefore,
valid as it protects the interests of Aadhaar number holders.
(Majority Opinion)                                                        E
       Aadhaar (Targeted Delivery of Financial and other subsidies,
benefits and services) Act, 2016: s.33 – Constitutionality of – Held:
s.33(1) of the Act prohibits disclosure of information, including
identity information or authentication records, except when it is by
an order of a court not inferior to that of a District Judge – This       F
provision is to be read down with the clarification that an individual,
whose information is sought to be released, shall be afforded an
opportunity of hearing – If such an order is passed, in that
eventuality, he shall also have right to challenge such an order
passed by approaching the higher court – During the hearing before
the concerned court, the said individual can always object to the         G
disclosure of information on accepted grounds in law, including
Art.20(3) of the Constitution or the privacy rights etc. – Insofar as
s.33(2) is concerned, it is held that disclosure of information in the
interest of national security cannot be faulted with – However, for
determination of such an eventuality, an officer higher than the          H
8            SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A   rank of a Joint Secretary should be given such a power – There has
    to be a higher ranking officer along with, preferably, a Judicial
    Officer – The provisions contained in s.33(2) of the Act to the extent
    it gives power to Joint Secretary is, therefore, struck down giving
    liberty to the respondents to suitably enact a provision on these
    lines, which would adequately protect the interest of individuals.
B
    (Majority Opinion)
           Aadhaar (Targeted Delivery of Financial and other subsidies,
    benefits and services) Act, 2016: s.47 – Constitutionality of – s.47
    provides that the cognizance would be taken only on a complaint
    made by the Authority or any officer or person authorised by it –
C   Petitioners feel aggrieved by this provision as it does not permit an
    individual citizen whose rights are violated, to initiate the criminal
    process – Held: It would be in the fitness of things if s.47 is amended
    by allowing individual/victim whose right is violated, to file a
    complaint and initiate the proceedings.(Majority Opinion)
D         Aadhaar (Targeted Delivery of Financial and other subsidies,
    benefits and services) Act, 2016: s.57 – Constitutionality of – s.57
    mentions that Aadhaar Act would not prevent use of Aadhaar number
    for other purposes under the law – Held: Insofar as s.57 in the
    present form is concerned, it is susceptible to misuse inasmuch as:
E   It can be used for establishing the identity of an individual ‘for any
    purpose’ – Therefore, the provision is read down to mean that such
    a purpose has to be backed by law – Further, whenever any such
    “law” is made, it would be subject to judicial scrutiny – Such
    purpose is not limited pursuant to any law alone but can be done
    pursuant to ‘any contract to this effect’ as well – This is clearly
F   impermissible as a contractual provision is not backed by a law
    and, therefore, first requirement of proportionality test is not met –
    Apart from authorising the State, even ‘any body corporate or person’
    is authorised to avail authentication services which can be on the
    basis of purported agreement between an individual and such body
G   corporate or person – Even if it is presumed that legislature did not
    intend so, the impact of the said features would be to enable
    commercial exploitation of an individual biometric and demographic
    information by the private entities – Thus, this part of the provision
    which enables body corporate and individuals also to seek
    authentication, that too on the basis of a contract between the
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                        9


individual and such body corporate or person, would impinge upon           A
the right to privacy of such individuals – This part of the section,
thus, is declared unconstitutional. (Majority Opinion)
       Aadhaar (Targeted Delivery of Financial and other subsidies,
benefits and services) Act, 2016: s.59 – Constitutionality of – When
the Aadhaar scheme/project under the Act has been saved from the           B
challenge to its constitutionality, there is no reason to invalidate the
enrolments which were made prior to the passing of this Act as it
would lead to unnecessary burden and exercise of enrolling these
persons all over again – Instead the problem can be solved by
eliciting ‘consent’ of all those persons who were enrolled prior to
the passing of the Act – Since, enrolment is voluntary in nature,          C
those who specifically refuse to give the consent, they would be
allowed to exit from Aadhaar scheme – After all, by getting Aadhaar
card, an individual so enrolled is getting a form of identity card – It
would still be open to such an individual to make use of the said
Aadhaar number or not – Those persons who need to avail any                D
subsidy, benefit or service would need Aadhaar in any case. It
would not be proper to cancel their Aadhaar cards – If direction is
given to invalidate all those enrolments which were made prior to
2016 then such persons will have to undergo the rigours of getting
themselves enrolled all over again – On the other hand, those who
do not get any benefit of the nature prescribed under s.7 of the Act,      E
it would always be open for them not to make use of Aadhaar card
or to make use of this card in a limited sense, namely, 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 – The validity of s.59 is upheld – As a corollary,        F
Aadhaar for the period from 2009 to 2016 also stands validated.
(Majority Opinion)
      Aadhaar (Targeted Delivery of Financial and other subsidies,
benefits and services) Act, 2016: s.7 – Whether the Aadhaar Act
could be passed as ‘Money Bill’ within the meaning of Art.110 of           G
the Constitution – Held: The importance of Rajya Sabha (Upper
House) in a bicameral system of the Parliament – The Rajya Sabha
is an important institution signifying constitutional fedaralism – To
enact any statute, the Bill has to be passed by both the Houses,
namely, Lok Sabha as well as Rajya Sabha – It is the constitutional
                                                                           H
10            SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A    mandate – The only exception to this Parliamentary norm is Art.110
     – Having regard to this overall scheme of bicameralism enshrined
     in our Constitution, strict interpretation has to be accorded to
     Art.110 – Insofar as s.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. –
B
     The expenditure incurred in respect of such a subsidy, benefit or
     service is from the Consolidated Fund of India – s.7 is the main
     provision of the Act – Introduction to the Act as well as Statement of
     Objects and Reasons very categorically record that the main purpose
     of Aadhaar Act is to ensure that such subsidies, benefits and services
C    reach those categories of persons, for whom they are actually meant
     – As all these three kinds of welfare measures are sought to be
     extended to the marginalised section of society, a collective reading
     thereof would show that the purpose is to expand the coverage of
     all kinds of aid, support, grant, advantage, relief provisions, facility,
     utility or assistance which may be extended with the support of the
D
     Consolidated Fund of India with the objective of targeted delivery
     – Various schemes contemplated by these provisions, relate to
     vulnerable and weaker section of the society – That is the main
     function behind the Aadhaar Act and for this purpose, enrolment
     for Aadhaar number is prescribed – Such an enrolment is of
E    voluntary nature – However, it becomes compulsory for those who
     seek 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
     s.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
F
     care of by Consolidated Fund of India – Therefore, s.7 is the core
     provision of the Aadhaar Act and this provision satisfies the
     conditions of Art.110 of the Constitution – Constitution of India –
     Art.110. (Majority Opinion)
            Aadhaar (Targeted Delivery of Financial and other subsidies,
G    benefits and services) Act, 2016: Data minimisation – Demographic
     information is readily provided by individuals globally for disclosing
     identity while relating with others and while seeking benefits whether
     provided by government or by private entities, be it registration for
     citizenship, elections, passports, marriage or enrolment in
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                       11


educational institutions – Email IDs and phone numbers are also           A
available in public domain – s.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 – s.32(3) of the
Aadhaar Act specifically prohibits the authority from collecting,
                                                                          B
storing or maintaining, either directly or indirectly any information
about the purpose of authentication – The proviso to Regn 26 of
Authentication Regulations is also to the same effect – Thus, the
principle of data minimization is largely followed. (Majority
Opinion)
       Aadhaar (Targeted Delivery of Financial and other Subsidies,       C
benefits and services) Act, 2016: s.2(k) – Requirement under the
Aadhaar Act to give one’s demographic information – Whether
violative of fundamental right of privacy – Held: Regn.4 indicates
that information which shall be collected from individual are his
name, date of birth, gender and residential address – The additional      D
information which can be collected at the option of the individual
is mobile number and e-mail address – Thus, information
contemplated under Regn 4 is nothing but information relating to
identity of the person – The identity of person from the time of taking
birth is an identity well known and generally every person describes
himself or herself to be son or daughter of such and such person –        E
People who take admissions in schools/colleges/ university, who
seek employment and those who engage in various trade and
commerce are all required to provide demographic information –
Therefore, there cannot be a reasonable expectation of privacy with
regard to such information – Thus, demographic information                F
required to be given in the process of enrolment does not violate
any right of privacy – Aadhaar (Enrolment and Update) Regulations,
2016 – Regn 4. (Per Ashok Bhushan, J.)
       Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.2(g) – Requirement under the          G
Aadhaar Act to give one’s biometric information – Whether violative
of fundamental right of privacy – Held: Biometric information means
photographs, fingerprints, iris scan and other such biometric
attributes of an individual as may be specified by the regulations –

                                                                          H
12            SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A    Biometric information is of physical characteristics of a person – A
     person has full bodily autonomy and any intrusion in the bodily
     autonomy of a person can be readily accepted as breach of his
     privacy – The biometric data as referred to in s.2(g) may contain
     biological attributes of an individual with regard to which a person
     can very well claim a reasonable expectation of privacy but whether
B
     privacy rights have been breached or not needs to be examined in
     the subject context under which the information was obtained. (Per
     Ashok Bhushan, J.)
            Aadhaar (Targeted Delivery of Financial and other Subsidies,
     benefits and services) Act, 2016: s.2(g) – Whether obtaining
C    biometric information in context of enrolment breaches the right of
     privacy of individual or not – Held: The provisions of Aadhaar Act
     are to be tested in light of three-fold test laid in Puttaswamy case –
     The First requirement to be fulfilled is existence of law – Admittedly,
     Aadhaar Act is a Parliamentary law, hence the existence of law is
D    satisfied – The Aadhaar Act has been enacted with an object of
     providing Aadhaar number to individuals for identifying an
     individual for delivery of benefits, subsidies and services – Aadhaar
     Act, which was enacted to provide for unique identity for delivery
     of subsidies, benefits or services was a dire necessity, which decision
     was arrived at after several reports and studies – Aadhaar Act
E    was, thus, enacted for a legitimate State aim and fulfills the criteria
     of a law being fair and reasonable – While examining the third
     requirement, that is, proportionality of the statute, it has to be kept
     in mind that the state is neither arbitrary nor of an excessive nature
     beyond what is required in the interest of public – The object of the
F    Aadhaar Act 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 – Biometric
     information, thus, which is to be obtained for enrolment is not
     disproportionate nor the provisions of Aadhaar Act requiring
G    demographic and biometric information can be said to be not
     passing three-fold test as laid down in Puttaswamy case – Thus,
     requirement under Aadhaar Act to give one’s demographic and
     biometric information does not violate fundamental right of privacy
     and, therefore, is not unconstitutional – Constitution of India –
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      13


Biometric information – Right to privacy. (Per Ashok Bhushan, J.)        A
       Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Whether proportionality test as
envisaged in Puttaswamy case is not fulfilled in the instant case
since State did not adopt an alternative and more suitable and least
intrusive method of identification – Held: The biometric information     B
which are obtained for Aadhaar enrolment are photographs,
fingerprints and iris scan, which are least intrusion in physical
autonomy of an individual – 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         C
legislation of due process. (Per Ashok Bhushan, J.)
       Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: ss.29, 30, 33 – Whether collection
of data of residents, its storage, retention and use violates
fundamental right of privacy – Held: The Act contains specific           D
provision providing that no core biometric information collected
under the Act is shared to anyone for any reason whatsoever or use
for any purpose other than generation of Aadhaar number or
authentication under this Act – The statute creates injunction for
requesting entity to use identity information data for any purpose       E
other than that specified to the individual at the time for submitting
any identification – Statute also provides for offences and penalties
for impersonation at the time of enrolment and penalty for disclosing
identity information – An overview of the entire scheme of functions
under the Aadhaar Act and Regulations made thereunder indicate
that after enrolment of resident, his informations including biometric   F
information are retained in CIDR though in encrypted form – The
major function of the authority under Aadhaar Act is authentication
of identity of Aadhaar number holder as and when requests are
made by requesting agency, retention of authentication data of
requesting agencies are retained for limited period – Requesting         G
entity as well as authority are required to retain authentication data
for a particular period and thereafter it will be archived for five
years and thereafter authentication data transaction shall be deleted
except such data which is required by the Court in connection with
any pending dispute – The data which is retained by the entity and
                                                                         H
14            SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A    authority for certain period is minimal information pertaining to
     identity authentication only no other personal data is retained –
     Thus, provisions of Aadhaar Act and Regulations made thereunder
     fulfill three fold test as laid down in Puttaswamy case, hence, the
     storage and retention of data does not violate fundamental right of
     privacy. (Per Ashok Bhushan, J.)
B
           Aadhaar (Targeted Delivery of Financial and other Subsidies,
     benefits and services) Act, 2016: s.7 – Whether s.7 is unconstitutional
     – Whether exclusion makes s.7 arbitrary and volative of Arts.14
     and 21 – Held: s.7 is an enabling provision which empowers the
     State Government to require that such individual undergo
C    authentication for receipt of a subsidy, benefit or service but neither
     s.7 nor orders issued by the Central Government and State
     Government can be read that in the event authentication of a person
     or beneficiary fails, he is not to be provided the subsidies and
     benefits or services – No doubt, there has been denial to few persons
D    due to failure of authentication – Functioning of scheme formulated
     by the Government for delivery of benefits and subsidies to
     deserving persons is a large scale scheme running into every nook
     and corner of the country – When such scheme of Government is
     implemented, it is not uncommon that there may be shortcomings
     and some denial – There is no material on record to indicate that
E    there is increase of failure to receive the benefits after the
     implementation of the Act –Therefore, few cases of exclusion would
     not make s.7 itself arbitrary and violative of Arts.14 and 21 –
     Constitution of India – Arts.14, 21. (Per Ashok Bhushan, J.)
            Aadhaar (Targeted Delivery of Financial and other Subsidies,
F    benefits and services) Act, 2016: s.29 – Constitutionality of ,
     challenged on the ground that it permits sharing of identity
     information which amount to breach of Right of Privacy – Held:
     The provision of s.29 and the Sharing Regulations contain a
     restriction and cannot be in any manner be held to violate any of
G    the constitutional rights of a person – Objective of the Act is to put
     restrictions on sharing information, which also is a legitimate State
     aim – The provision under s.29 which permits sharing of identity
     information except core biometric information in accordance with
     the Act and Regulations cannot be said to be disproportionate nor
     unreasonable – The provisions of s.29 is constitutional and does
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      15


not deserves to be struck down – Aadhaar (Sharing of Information)        A
Regulations, 2016. (Per Ashok Bhushan, J.)
       Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: s.33 – Constitutionality of –
Whether s.33 is unconstitutional since it provides for the use of the
Aadhaar data base for Police verification which violates the             B
protection against self-incrimination as enshrined under Art.20(3)
of the Constitution of India – Held: Sub-section (1) of s.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 – s.33 sub-        C
section (2) contains two safeguards – Firstly, disclosure of
information is to be made in the interest of national security and
secondly, in pursuance of a direction of an officer not below the
rank of Joint Secretary to the Government, who is specially
authorised in this behalf by an order of the Central Government –        D
National security, thus, is determined by a higher officer who is
specifically authorised in this behalf – The power given under s.33
to disclose information cannot be said to be disproportionate – The
basic information which are with the UIDAI are demographic and
biometric information – The use of information retained by the UIDAI
given by the order of the Court under s.33 cannot be said to be          E
violating the protection as contained under Art.20(3) – Thus,
Art.20(3) is not violated by disclosure of information under s.33 –
In view of this, s.33 is constitutional – Constitution of India –
Art.20(3). (Per Ashok Bhushan, J.)
       Aadhaar (Targeted Delivery of Financial and other Subsidies,      F
benefits and services) Act, 2016: s.47 – Constitutionality of,
challenged on the ground that it does not allow an individual who
is victim of violation of Aadhaar Act to initiate a criminal process –
Held: Special Acts are enacted for serving special objects towards
offences under the Act – The initiation and prosecution of offences      G
under the Special Act are kept by the specified authority to keep
the initiation and prosecution in the hands of the authorities under
the Special Act which acts as deterrent and prosecutions are brought
to its logical end – Objective of such provisions is to discourage
frivolous and vexatious complaints – s.47 can be invoked by the
                                                                         H
16            SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A    authority on its own motion or when it receives a complaint from a
     victim – With regard to an offence which falls within the definition
     of ‘offences’ a victim can always file complaint or lodge an F.I.R. –
     s.46 clearly provides that the penalties under the Aadhaar Act shall
     not interfere with other punishments – The limitation as contained
     in s.47 in permitting taking cognizance of any offence punishable
B
     under Aadhaar Act only on a complaint made by the authority or
     any officer or person authorised by it, has legislative purpose and
     objective – Thus, there is no unconstitutionality in s.47 of the
     Aadhaar Act. (Per Ashok Bhushan, J.)
            Aadhaar (Targeted Delivery of Financial and other Subsidies,
C    benefits and services) Act, 2016: s.57 – Constitutionality of,
     challenged on the ground that broad and unlimited scope of activities
     covered under s.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 –
D    Held: s.57 makes use of Aadhaar on two basis – Firstly, “pursuant
     to any law, for the time being in force” and secondly “any contract
     to this effect” – When the legislature uses the phrase “pursuant to
     any law, for the time being in force”, obviously the word law used
     in s.57 is a law other than s.57 of Aadhaar Act and the Regulations
     framed thereunder – When any law permits user of Aadhaar, its
E    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 – Thus, s.57 in so far as it permits use of Aadhaar
F    on “any contract to this effect” is clearly unconstitutional and is
     struck down. (Per Ashok Bhushan, J.)
           Aadhaar (Targeted Delivery of Financial and other Subsidies,
     benefits and services) Act, 2016: s.59 – Whether s.59 is void or
     unconstitutional – s.59 seeks to save and continue under the Act
G    what was done under the executive scheme – Legislature often creates
     legal fiction to save several actions which had happened prior to
     enactment – Parliamentary legislative intent of s.59 is to save all
     actions taken by Central Government under the notification dtd.
     28.01.2009 and notification dtd. 12.09.2015 deeming the same to
     have been validly done under the Aadhaar Act by creating a legal
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      17


fiction – The intention to save all actions taken under these two        A
notifications and treat them to have done under that Act is the
purpose and object of s.59 – Legislature by legislative device can
cover actions taken earlier while creating any legal fiction which
has actually been done by s.59 – Interpretation of statutes – Legal
fiction. (Per Ashok Bhushan, J.)
                                                                         B
       Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Circular dated 23.03.2017 issued
by Ministry of Communications, Department of Telecommunications
– Constitutionality of – Held: By circular dated 23.03.2017, all
licensees were directed to re-verify all existing mobile subscribers
(prepaid and postpaid) through Aadhaar based e- KYC process –            C
The circular directing the licensees to mandatorily verify existing
sim subscribers in turn resulted in mobile telephone service licensees
directing the subscribers to get their sim seeded with Aadhaar –
Compulsory seeding of Aadhaar with mobile numbers would be an
intrusion in Privacy Right of a person – Any invasion on the Privacy     D
Right of a person has to be backed by law as per the three-fold test
enumerated in Puttaswamy case – Existence of a law is the foremost
condition to be fulfilled for restricting any Privacy Right – The law
as explained in Art.13(3) has to be applied for finding out as to
what is law – Art.13(3)(a) gives an inclusive definition of law in
following words:- (a) “law” includes any ordinance, order, bye-          E
law, rule, regulation, notification, custom or usage having in the
territory of India the force of law – The circular at best is only an
executive instruction and 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, therefore, cannot        F
be upheld – Administrative law – Executive instruction – Circular
dated 23.03.2017 issued by Ministry of Communications, Department
of Telecommunications. (Per Ashok Bhushan, J.)
      Aadhaar (Enrolment and Update) Regulations, 2016: Regn 5
– Whether collecting the identity information of children between 5      G
to 18 years is unconstitutional – Held: Regn 5 provides for
information required for enrolment of children below five years of
age – For children below five, no core biometric informations are
captured and only biometric information of any one parent/guardian
is captured – For enrolment of a children between 5 and 18 years,
                                                                         H
18            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A    there has to be consent of their parents or guardian because they
     themselves are unable to give any valid consent for enrolment –
     Thus, parental consent have to be read in Regn 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 –
     Aadhaar (Targeted Delivery of Financial and other Subsidies,
B
     benefits and services) Act, 2016 – s.5 – Interpretation of statutes.
     (Per Ashok Bhushan, J.)
            Aadhaar (Authentication) Regulations, 2016: Regn.27 – Time
     Period for Data Retention – Grievance of petitioners was that the
C    data is allowed to be retained for an unreasonable long period of
     time – Held: Regn 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 – Requesting entities (RE)
     and Authentication Service Agencies are then allowed to retain
D    the authentication logs for a period of 2 years and then archive
     them for 5 years – It is required to be deleted only after 7 years
     unless retained by a court – There is is no reason for archiving the
     authentication transaction data for a period of five years –
     Retention of this data for a period of six months is more than
E    sufficient after which it needs to be deleted except when such
     authentication transaction data are required to be maintained by a
     Court or in connection with any pending dispute – Retention of
     data beyond the period of six months is impermissible – Therefore,
     Regn.27 which provides archiving a data for a period of five years
     is struck down. (Majority Opinion)
F
           Aadhaar Scheme: Whether Circular dtd. March 23, 2017
     issued by the Department of Telecommunications mandating linking
     of mobile number with Aadhaar is illegal and unconstitutional –
     Held: The circular is illegal and unconstitutional as it is not backed
     by any law – The same is, therefore, quashed. (Majority Opinion)
G
          Constitutionalism: Aadhaar Act meets the concept of Limited
     Government, Good Governance and Constitutional Trust. (Majority
     Opinion)


H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     19


       Constitution of India: Art.14 and 21 – Whether right to food,    A
shelter etc. envisaged under Art.21 shall take precedence on the
right to privacy of the beneficiaries – Held: It cannot be accepted
that while balancing the fundamental rights one right has to be
given preference – State while enlivening right to food, right to
shelter etc. envisaged under Art.21 cannot encroach upon the right
                                                                        B
of privacy of beneficiaries nor former can be given precedence
over the latter. (Per Ashok Bhushan, J.)
      Constitution of India: Reasonable expectation of privacy –
Held: 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”.                 C
(Per Ashok Bhushan, J.)
       Constitution of India: Art.243G – Whether Aadhaar scheme
and its authentication for benefits, subsidies and services militate
against Art.243G and hence are ultra vires to the Constitution –
Held: Art.243G is an enabling provision, which enable the State         D
Legislature, by law, to endow the Panchayats with such powers and
authorities as may be necessary to enable them to function as
institutions of self-government – State is fully competent to make
laws to authorise the Panchayats to take over all the matters
enumerated in Eleventh Schedule – The Aadhaar Act is an Act             E
enacted by Parliament, which is referable to Entry 97 of List 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          F
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       G
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 – Aadhaar Act
is not ultra vires to Art.243G and Eleventh Schedule to the

                                                                        H
20            SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A    Constitution – Aadhaar (Targeted Delivery of Financial and other
     Subsidies, benefits and services) Act, 2016 – Doctrines/Principles.
     (Per Ashok Bhushan, J.)
            Constitution of India: Art.110 – Whether Speaker’s decision
     certifying the Aadhaar Bill as Money Bill contravenes any of the
B    Constitutional provisions – 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,
     has been provided by s.7 – The Preamble of the Act as well as objects
     and reasons also indicate that the Act has been enacted to provide
     for, as a good governance, efficient, transparent, and targeted
C    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
D    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 Art.110(1)(c) and (e) – Aadhaar
     (Targeted Delivery of Financial and other Subsidies, benefits and
     services) Act, 2016. (Per Ashok Bhushan, J.)
E
           Constitution of India: Art.110 – Whether Aadhaar Act is a
     Money Bill and decision of Speaker certifying it as Money Bill is
     not subject to Judicial Review of Supreme Court – Held: Aadhaar
     Bill has rightly been certified as the Money Bill by the Speaker,
     which decision does not violate any constitutional provision, hence
F    does not call for any interference in this proceeding – The decision
     of Speaker certifying the Aadhaar Bill, 2016 as Money Bill is not
     immuned from Judicial Review. (Per Ashok Bhushan, J.)
           Doctrines/Principles: Doctrine of Proportionality – State’s
     action – When challenged on the ground that it violates the right to
G    privacy – Held: 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 democratic society for a
     legitimate aim; and (c) the extent of such interference must be
     proportionate to the need for such interference – Constitution of
H    India – Right to privacy. (Majority Opinion)
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                       21


       Income Tax Act, 1961: s.139AA – Constitutionality of –             A
Whether s.139AA is violative of right to privacy and is, therefore,
unconstitutional – Held: In Puttaswamy, the court laid down the
triple test to be satisfied for judging the permissible limits for
invasion of privacy while testing the validity of any legislation –
These are: (a) existence of a law; (b) A legitimate State interest; and
                                                                          B
(c) Such law should pass the “test of proportionality” – There is no
dispute that the first requirement stood satisfied as s.139AA is a
statutory provision and, there is a backing of law – Insofar as
requirement of ‘legitimate State interest’ is concerned, s.139AA is
enacted to link PAN number with Aadhaar number which is issued
under the Act for the purpose of eliminating duplicate PANs from          C
the system with the help of robust technology solution – Therefore,
those who have PAN number and have already provided the
information required to get PAN number cannot claim to have any
legitimate expectation of withholding any data required for Aadhaar
under the ground of privacy – Also, there was justifiable reason
                                                                          D
with the State for collection and storage of data in the form of
Aadhaar and linking it with PAN insofar as s.139AA of the 1961
Act is concerned – The provisions of s.139AA meet the triple test of
right to privacy, contained in Puttaswamy. (Majority Opinion)
       Income Tax Act, 1961: s.139AA – Whether s.139-AA of the
IT Act, 1961 is unconstitutional in view of the Privacy judgment in       E
Puttaswamy case – Held: s.139-A provide for Permanent Account
Number (PAN) and the provision also provided that statutory
mandatory provisions as to when “every person” shall quote such
number (PAN number) for various purposes as enumerated in s.139A
– Introduction of s.139-AA is an extension and implication of s.139A      F
– The introduction of s.139-AA was for the purpose of eliminating
duplicate PANs from the system with the help of a robust technology
solution – s.139-AA 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 – Linking of
PAN with Aadhaar will at least ensure that duplicate and fake PAN         G
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 – s.139-AA also cannot be said to be disproportionate
– The section has been enacted to achieve the legitimate State aim –
                                                                          H
22            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A    s.139-AA is a law framed by Parliament, which require linking of
     the Aadhaar with PAN – s.139-AA is a required first step to weed
     out fake PANs for individuals; it is perfectly acceptable for the
     legislature to weed out fake PANs for other tax-paying entities at a
     later stage – Inclusion of Aadhaar into PAN eliminates the inequality
     between honest tax payers and non-compliant, dishonest ones who
B
     get away without paying taxes – Inclusion of Aadhaar into PAN
     bolsters equality and is consistent with Art.14 – In result, s.139-AA
     is fully compliant of three-fold test as laid down in Puttaswamy’s
     case – s.139-AA, thus does not breach fundamental Right of Privacy
     of an individual            and cannot        be    struck      down.
C    (Per Ashok Bhushan, J.)
            Interim Orders: As per the petitioners, the Central
     Government and the State Government have issued certain
     notifications requiring Aadhaar authentication for benefits, subsidies
     and schemes mandatory and, therefore, the respondents have
D    violated the orders of this court – Held: The said interim orders
     were passed by the court when the Aadhaar Act had not come into
     force – After the enactment, s.7 had altered the position statutorily
     – The notifications and circulars are issued under this provision –
     Therefore, it cannot be held that these circulars are issued in
     contravention of the orders passed by this court – Aadhaar (Targeted
E    Delivery of Financial and other subsidies, benefits and services)
     Act, 2016. (Majority Opinion)
           Aadhaar (Targeted Delivery of Financial and other Subsidies,
     benefits and services) Act, 2016: The entire Aadhaar programme,
     since 2009, suffers from constitutional infirmities and violations of
F    fundamental rights – The enactment of the Aadhaar Act does not
     save the Aadhaar project – The Aadhaar Act, the Rules and
     Regulations framed under it, and the framework prior to the
     enactment of the Act are held unconstitutional.
     (Per Dr. D Y Chandrachud, J.)
G          Aadhaar (Targeted Delivery of Financial and other Subsidies,
     benefits and services) Act, 2016: s.7 – Aadhaar Act challenged on
     the ground that it could not have been passed as a Money Bill –
     Held: To be certified a Money Bill, a Bill must contain “only
     provisions” dealing with every or any one of the matters set out in
H    sub-clauses (a) to (g) of Art.110(1) – A Bill, which has both
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      23


provisions which fall within sub-clauses (a) to (g) of Art.110(1) and    A
provisions which fall outside their scope, will not qualify to be a
Money Bill – Thus, when a Bill which has been passed as a Money
Bill has certain provisions which fall beyond the scope of sub-clauses
(a) to (g) of Art.110(1), these provisions cannot be severed – The
Aadhaar Act creates a statutory framework for obtaining a unique
                                                                         B
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 s.7 – Clause (e) of Art.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          C
increasing the amount of the expenditure) – s.7 fails to fulfil this
requirement – s.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 them – Moreover, provisions other than s.7 of
                                                                         D
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 individual information, creation
of a statutory authority to implement and supervise the process,
protection of information collected during the process, disclosure       E
of information in certain circumstances, creation of offences and
penalties for disclosure or loss of information, and the use of the
Aadhaar number for “any purpose” – All these provisions of the
Aadhaar Act do not lie within the scope of sub-clauses (a) to (g) of
Art.110(1) – Thus, the Aadhaar Act is declared unconstitutional for
                                                                         F
failing to meet the necessary requirements to have been certified as
a Money Bill under Art.110(1) – Constitution of India – Art.110.
(Per Dr. D Y Chandrachud, J.)
      Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Legitimate State aim, insufficient
to hold validity of law – Held: The architecture of the Aadhaar Act      G
seeks to create a unique identity for residents on the basis of their
demographic and biometric information – The Act sets up a process
of identification by which the unique identity assigned to each
individual is verified with the demographic and biometric
                                                                         H
24            SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A    information pertaining to that individual which is stored in a
     centralised repository of data – Identification of beneficiaries is
     integral and essential to the 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 – The
     contention of the Union of India that there is a legitimate state aim
B
     in maintaining a system of identification to ensure that the welfare
     benefits provided by the State reach the beneficiaries who are
     entitled, without diversion, is accepted – The decision in Puttaswamy
     recognised that revenue constitutes a legitimate state aim in the three-
     pronged test of proportionality – However, the existence of a
C    legitimate aim is insufficient to uphold the validity of the law, which
     must also meet the other parameters of proportionality spelt out in
     Puttaswamy. (Per Dr. D Y Chandrachud, J.)
            Aadhaar (Targeted Delivery of Financial and other Subsidies,
     benefits and services) Act, 2016: Collection of biometric data and
D    its retention – 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
E    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
F    for each step from the collection to retention of biometric data – At
     the time of collection, individuals must be informed about the
     collection procedure, the intended purpose of the collection, the
     reason why the particular data set is requested and who will have
     access to their data – Additionally, the retention period must be
     justified and individuals must be given the right to access, correct
G    and delete their data at any point in time, a procedure familiar to
     an opt-out option.(Per Dr. D Y Chandrachud, J.)
           Aadhaar (Targeted Delivery of Financial and other Subsidies,
     benefits and services) Act, 2016: The Aadhaar Act and Regulations
     are bereft of the procedure through which an individual can access
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                       25


information related to his or her authentication record – The             A
Aadhaar Act clearly has no defined options that should be made
available to the Aadhaar number holders in case they do not wish
to submit identity information during authentication, nor do the
regulations specify the procedure to be followed in case the Aadhaar
number holder does not provide consent for authentication – To
                                                                          B
enable the government to initiate steps for ensuring conformity with
this judgment, it is directed under Art.142 that the existing data
which has been collected shall not be destroyed for a period of one
year – During this period, the data shall not be used for any purpose
whatsoever – At the end of one year, if no fresh legislation has been
enacted by the Union government in conformity with the principles         C
which have been enunciated in this judgment, the data shall be
destroyed      –     Constitution     of     India      –    Art.142.
(Per Dr. D Y Chandrachud, J.)
       Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: ss.2(g), (j), (k) and (t), 29(1) and    D
(2) – Constitutionality of – Invasion in privacy of an individual –
ss.29(1) and (2) of the Act create a distinction between two classes
of information (core biometric information and identity information),
which are integral to individual identity and require equal protection
– s.29(4) suffers from overbreadth as it gives wide discretionary
power to UIDAI to publish, display or post core biometric                 E
information of an individual for purposes specified by the
regulations – ss.2(g), (j), (k) and (t) suffer from overbreadth, as
these can lead to an invasive collection of biological attributes –
These provisions give discretionary power to UIDAI to define the
scope of biometric and demographic information and empower it             F
to expand on 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.
(Per Dr. D Y Chandrachud, J.)
      Aadhaar (Targeted Delivery of Financial and other Subsidies,        G
benefits and services) Act, 2016: s.28(5) – Violation of informational
privacy – The proviso to s.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
                                                                          H
26            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A    individual – UIDAI is also provided wide powers in relation to
     removing the biometric locking of residents – The 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 clearly show that the Aadhaar programme violates essential
B
     norms pertaining to informational privacy, self-determination and
     data protection. (Per Dr. D Y Chandrachud, J.)
            Aadhaar (Targeted Delivery of Financial and other Subsidies,
     benefits and services) Act, 2016: Dignity of an individual – Biometric
     technology which is the core of the Aadhaar programme is
C    probabilistic in nature, leading to authentication failures – The
     Aadhaar project has failed to account for and remedy the flaws in
     its framework and design which has led to serious instances of
     exclusion of eligible beneficiaries as demonstrated by the official
     figures from Government records including the Economic Survey of
D    India 2016-17 and research studies – Dignity and the rights of
     individuals cannot be made to depend on algorithms or probabilities
     – Constitutional guarantees cannot be subject to the vicissitudes of
     technology – Denial of benefits arising out of any social security
     scheme which promotes socio-economic rights of citizens is violative
     of human dignity and impermissible under our constitutional scheme.
E    (Per Dr. D Y Chandrachud, J.)
           Aadhaar (Targeted Delivery of Financial and other Subsidies,
     benefits and services) Act, 2016: Test of necessity and
     proportionality – Violation of data minimisation principles – Under
     the Aadhaar project, requesting entities can hold the identity
F    information of individuals, for a temporary period – It was admitted
     by UIDAI that AUAs may store additional information according to
     their requirement to secure their system – ASAs have also been
     permitted to store logs of authentication transactions for a specific
     time period – It has been admitted by UIDAI that it gets the AUA
G    code, ASA code, unique device code and the registered device code
     used for authentication, and that UIDAI would know from which
     device the authentication took place and through which AUA/ASA
     – Under the Regulations, UIDAI further stores the authentication
     transaction data – This is in violation of widely recognized data
     minimisation principles which mandate that data collectors and
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                       27


processors delete personal data records when the purpose for which        A
it has been collected is fulfilled – Moreover, using the meta-data
related to the transaction, the location of the authentication can
easily be traced using the IP address, which impacts upon the
privacy of the individual. (Per Dr. D Y Chandrachud, J.)
       Aadhaar (Targeted Delivery of Financial and other Subsidies,       B
benefits and services) Act, 2016: Risk of potential surveillance –
When Aadhaar is seeded into every database, it becomes a bridge
across discreet data silos, which allows anyone with access to this
information to re-construct a profile of an individual’s life – This is
contrary to the right to privacy and poses severe threats due to
potential surveillance – From the verification log, it is possible to     C
locate the places of transactions by an individual in the past five
years – It is also possible through the Aadhaar database to track
the 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        D
in the verification log poses an additional risk of an individual’s
biometric data being vulnerable to unauthorised exploitation by
third parties – 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         E
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      F
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 security and cannot be subjected to the mere terms and
conditions of a normal contract. (Per Dr. D Y Chandrachud, J.)            G

      Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Enrolment by private parties –
Before the enactment of the Aadhaar Act, MOUs between UIDI and
Registrars were not contracts within the purview of Art.299 of the
                                                                          H
28            SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A    Constitution, and therefore, do not cover the acts done by the private
     entities engaged by the Registrars for enrolment – Since there is no
     privity of contract between UIDAI and the Enrolling agencies, the
     activities of the private parties engaged in the process of enrolment
     before the enactment of the Aadhaar Act have no statutory or legal
     backing        –    Constitution      of     India     –     Art.299.
B
     (Per Dr. D Y Chandrachud, J.)
            Aadhaar (Targeted Delivery of Financial and other Subsidies,
     benefits and services) Act, 2016: Aadhaar Act silent on the liability
     of UIDAI – Under the Aadhaar architecture, UIDAI is the sole
     authority which carries out all administrative, adjudicatory,
C    investigative, and monitoring functions of the project – While the
     Act confers these functions on UIDAI, it does not place any
     institutional accountability upon UIDAI to protect the database of
     citizens’ personal information – UIDAI also takes no institutional
     responsibility for verifying whether the data entered and stored in
D    the CIDR is correct and authentic – The task has been delegated to
     the enrolment agency or the Registrar – Verification of data being
     entered in the CIDR is a highly sensitive task for which the UIDAI
     ought to have taken responsibility – The Aadhaar Act is also silent
     on the liability of UIDAI and its personnel in case of their non-
     compliance of the provisions of the Act or the regulations.
E    (Per Dr. D Y Chandrachud, J.)
            Aadhaar (Targeted Delivery of Financial and other Subsidies,
     benefits and services) Act, 2016: s.47 – Right of individual, victim
     of violation of Aadhaar Act to initiate a criminal process – Held:
     s.47 of the Act violates citizens’ right to seek remedies – Under
F    s.47(1), a court can take cognizance of an offence punishable under
     the Act only on a complaint made by UIDAI or any officer or person
     authorised by it – s.47 is arbitrary as it fails to provide a mechanism
     to individuals to seek efficacious remedies for violation of their
     right to privacy – Further, s.23(2)(s) of the Act requires UIDAI to
G    establish a grievance redressal mechanism – Making the authority
     which is administering a project, also responsible for providing a
     grievance redressal mechanism for grievances arising from the
     project severely compromises the independence of the grievance
     redressal body. (Per Dr. D Y Chandrachud, J.)

H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                         29


       Aadhaar (Targeted Delivery of Financial and other Subsidies,         A
benefits and services) Act, 2016: s.59 – Validation of actions taken
under the 2009 notification – Held: s.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 – s.59 does not validate
                                                                            B
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 s.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         C
infirmity or invalidity – s.59 fails to cure the cause of invalidity
prior to the enactment of the Aadhaar Act – 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
                                                                            D
enforce the right to privacy – s.59, therefore, fails to meet the test of
a validating law since the complete absence of a regulatory
framework and safeguards cannot be cured merely by validating
what was done under the notifications of 2009 and 2016.
(Per Dr. D Y Chandrachud, J.)
                                                                            E
       Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Absence of an independent
regulatory and monitoring framework to provide safeguards for
data protection – Held: Absence of an independent regulatory
framework renders the Act largely ineffective in dealing with data
violations – The architecture of Aadhaar ought to have, but has             F
failed to embody within 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
                                                                            G
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 Art.14. (Per Dr. D Y Chandrachud, J.)

                                                                            H
30            SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A           Aadhaar (Targeted Delivery of Financial and other Subsidies,
     benefits and services) Act, 2016: s.57 – Allowing private entities to
     use Aadhaar numbers – Constitutionality of – Held: This 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
B
     and preferences of individuals – These preferences could also be
     used to influence the decision making of the electorate in choosing
     candidates for electoral offices – This is contrary to privacy
     protection norms – Data cannot be used for any purpose other
     than those that have been approved – While developing an
C    identification system of the magnitude of Aadhaar, security concerns
     relating to the data of 1.2 billion citizens ought to be addressed –
     These issues have not been dealt with by the Aadhaar Act – By
     failing to protect the constitutional rights of citizens, s.57 violates
     Arts.14 and 21 – s.57 is susceptible to be applied to permit
     commercial exploitation of the data of individuals or to affect their
D
     behavioural patterns – s.57 cannot pass constitutional muster –
     Since it is manifestly arbitrary, it suffers from overbreadth and
     violates Art.14 – Constitution of India – Arts.14, 21.
     (Per Dr. D Y Chandrachud, J.)
            Aadhaar (Targeted Delivery of Financial and other Subsidies,
E
     benefits and services) Act, 2016: s.7 – Constitutionality of – Held:
     s.7 suffers from overbreadth since the broad definitions of the
     expressions ‘services and ‘benefits’ enable the government to
     regulate almost every facet of its engagement with citizens under
     the Aadhaar platform – If the requirement of Aadhaar is made
F    mandatory for every benefit or service which the government
     provides, it is impossible to live in contemporary India without
     Aadhaar – The inclusion of services and benefits in s.7 is a pre-
     cursor to the kind of function creep which is inconsistent with the
     right to informational self-determination – s.7 is, therefore, arbitrary
     and violative of Art.14 in relation to the inclusion of services and
G
     benefits as defined – Constitution of India – Art.14.
     (Per Dr. D Y Chandrachud, J.)
            Aadhaar (Targeted Delivery of Financial and other Subsidies,
     benefits and services) Act, 2016: s.7 – The legitimate aim of the
     State can be fulfilled by adopting less intrusive measures as opposed
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                       31


to the mandatory enforcement of the Aadhaar scheme as the sole            A
repository of identification – The State has failed to demonstrate
that a less intrusive measure other than biometric authentication
would not subserve its purposes. (Per Dr. D Y Chandrachud, J.)
       Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Requirement of e-KYC                    B
authentication of mobile subscribers – Constitutionality of – Held:
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, the decision to link Aadhaar numbers with mobile SIM
cards is neither valid nor constitutional – Mere existence of a           C
legitimate state aim will not justify the disproportionate means which
have been adopted in the instant 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.            D
(Per Dr. D Y Chandrachud, J.)
       Aadhaar (Targeted Delivery of Financial and other Subsidies,
benefits and services) Act, 2016: Interim orders – Defiance of
judicial orders (both interim and final) be it by the government or
by citizens negates the basis of the rule of law – Both propriety and     E
constitutional duty required the Union government to move this Court
after the enactment of the Aadhaar Act for variation of this Court’s
interim orders – Institutions of governance are bound by a sense of
constitutional morality which requires them to abide by judicial
orders – Interlocutory orders. (Per Dr. D Y Chandrachud, J.)
                                                                          F
       Constitution of India: Art.110 – Decision of Speaker under
Art.110 – Whether immune from judicial review – Held: The
decisions of the Speaker is subject to judicial review, if it suffers
from illegality or from a violation of constitutional provisions – The
power of the Speaker cannot be exercised arbitrarily in violation
of constitutional norms and values, as it damages the essence of          G
federal bicameralism, which is a part of the basic structure of the
Constitution – Judicial review of the Speaker’s decision, on whether
a Bill is a Money Bill is necessary to protect the basic structure of
the Constitution – A constitutional trust has been vested in the office
of the Speaker of the Lok Sabha – By declaring a Bill to be a Money       H
32            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A    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 –
B
     Judicial review is necessary to ensure that the federal features of
     the Constitution are not transgressed – Administrative law – Judicial
     review. (Per Dr. D Y Chandrachud, J.)
           Constitution of India: Art.110 – History of Art.110(3),
     comparative constitutional practices and other constitutional
C    provisions using the phrase ‘shall be final’ – Examined.
     (Per Dr. D Y Chandrachud, J.)
           Constitution of India: Role of Rajya Sabha – The Rajya Sabha
     represents the constituent states of India – It legitimately holds itself
     as the guardian of the interest of the component states in a federal
D    polity – It endeavours to remain concerned and sensitive to the
     aspirations of the states, thereby strengthening the country’s “federal
     fabric” and “promotes national integration” – The Rajya Sabha is
     a permanent body as it is not subject to dissolution – Being an
     indirectly elected House, it has no role in the making or unmaking
E    of the Government and, therefore, it is comparatively “free from
     compulsions of competitive party politics” – As a revising chamber,
     the Constitution makers envisioned that it will protect the values of
     the Constitution, even if it is against the popular will – The Rajya
     Sabha is a symbol against majoritarianism – Participatory
     governance is the essence of democracy – It ensures responsiveness
F    and transparency – An analysis of the Bills revised by the Rajya
     Sabha reveals that in a number of cases, the changes recommended
     by the Rajya Sabha in the Bills passed by the Lok Sabha were
     eventually carried out. (Per Dr. D Y Chandrachud, J.)
            Constitutionalism: Constitutional identity – Aadhaar scheme
G    – Held: Identity is necessarily a plural concept – The Constitution
     also recognizes a multitude of identities through the plethora of
     rights that it safeguards – The technology deployed in the Aadhaar
     scheme reduces different constitutional identities into a single identity
     of a 12-digit number and infringes the right of an individual to
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                         33


identify herself/himself through a chosen means – Aadhaar is about          A
identification and is an instrument which facilitates a proof of identity
– It must not be allowed to obliterate constitutional identity. (Per
Dr. D Y Chandrachud, J.)
      Income Tax Act, 1961: s.139AA – Constitutionality of – Held:
The seeding of Aadhaar with PAN cards depends on the                        B
constitutional validity of the Aadhaar legislation itself – s.139AA is
based on the premise that the Aadhaar Act itself is a valid legislation
– Since the Aadhaar Act itself is now held to be unconstitutional
for having been enacted as a Money Bill and on the touchstone of
proportionality, the seeding of Aadhaar to PAN under Art.139AA
does not stand independently – Aadhaar (Targeted Delivery of                C
Financial and other Subsidies, benefits and services) Act, 2016.
(Per Dr. D Y Chandrachud, J.)
       Interpretation of Statutes: Deeming fiction – While a
legislature has the power to legislate retrospectively, it cannot
retrospectively create a deeming fiction about the existence of             D
safeguards in the past to justify an encroachment on a fundamental
right. (Per Dr. D Y Chandrachud, J.)
       Prevention of Money Laundering (Maintenance of Records)
Rules, 2005: r.9 – Constitutionality of – Whether r.9 and the
notifications issued thereunder which mandates linking of Aadhaar           E
with bank accounts is unconstitutional – Held: The provision in the
present form does not meet the test of proportionality and, therefore,
violates the right to privacy of a person which extends to banking
details – This linking is made compulsory not only for opening a
new bank account but even for existing bank accounts with a                 F
stipulation that if the same is not done then the account would be
deactivated, with the result that the holder of the account would not
be entitled to operate the bank account till the time seeding of the
bank account with Aadhaar is done – This amounts to depriving a
person of his property – The test of proportionality requires that a
limitation of the fundamental rights must satisfy the following to be       G
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          H
34            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A    right – This move of mandatory linking of Aadhaar with bank
     account does not satisfy the test of proportionality – The Rules are
     held to be disproportionate. (Majority Opinion)
            Prevention of Money Laundering (Maintenance of Records)
     Rules, 2005: r.9 – Whether r.9 as amended by the Prevention of
B    Money-Laundering (Second Amendment) Rules, 2017 is
     unconstitutional – Held:r.9 as amended by PMLA (Second
     Amendment) Rules, 2017 is not unconstitutional and does not violate
     Arts.14, 19(1)(g), 21 & 300A of the Constitution and ss.3, 7 & 51
     of the Aadhaar Act – Further r.9 as amended is not ultra vires to
     PMLA Act, 2002 – Amended Rules help all concerned to detect
C    fictitious, ghost and benami accounts – The object of the PMLA
     and the definition of beneficial owner Act seeks to traverse behind
     the corporate veil of shell companies and spurious Directors in
     order to ascertain the real natural persons controlling the accounts
     in the reporting entities – The statutory rules cast an obligation on
D    all account holders to get their identity verified by Aadhaar
     mechanism and those who are already holding account in the
     reporting entity they are required to submit the Aadhaar number or
     proof of their applied Aadhaar identity – When a statute puts
     obligation on account holder to get identity verification in a
     particular manner a person chose not to obtain Aadhaar number
E    cannot complain his disentitlement of operating his account – 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
F    directors, money laundering, terror financing etc. – 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
G    for once is not any cumbersome or undue burden on an account
     holder and is a proportionate measure – For non-submission of
     Aadhaar number and PAN only consequence which is contemplated
     by sub-rule (c) is that account shall cease to be operational – The
     account will remain to belong to the account holder and the amount
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                       35


in the account is only his amount and there is no deprivation of the      A
property of account holder – Further, account is ceased operational
only till the time Aadhaar number and PAN is submitted – The
consequences provided is only to effectuate the purpose of the Act
and the Rules i.e. account be verified by Aadhaar mechanism –
Thus, r.9(17)(c) does not violate right under Art.300A – Aadhaar
                                                                          B
number providing for verification of an account also cannot be
held to be violating right under Art.21 – The reporting entity i.e.
banks and financial institutions 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         C
an individual – 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 – Rules cannot be held in any manner violating ss.3, 7
and 51 – The rules provide for use of Aadhaar for verification of
                                                                          D
bank account by law as contemplated by s.57 of the Aadhaar Act –
Prevention of Money-Laundering (Second Amendment) Rules, 2017
– Constitution of India – Arts.14, 19(1)(g), 21 and 300A – Aadhaar
(Targeted Delivery of Financial and other Subsidies, benefits and
services) Act, 2016. (Per Ashok Bhushan, J.)
       Prevention of Money Laundering (Maintenance of Records)            E
Rules, 2005: r.9 (as amended by PMLA (Second Amendment) Rules,
2017 ) – Constitutionality of – Held: The 2017 amendments to the
PMLA Rules fail to satisfy the test of proportionality – The imposition
of a uniform requirement of linking Aadhaar numbers with all
account based relationships proceeds on the presumption that all          F
existing account holders as well as every individual who seeks to
open an account in future is a potential money-launderer – No
distinction has been made in the degree of imposition based on the
client, the nature of the business relationship, the nature and value
of the transactions or the actual possibility of terrorism and money-
laundering – The rules also fail to make a distinction between            G
opening an account and operating an account – Moreover, the
consequences of the failure to submit an Aadhaar number are
draconian – In their present form, the rules are clearly
disproportionate and excessive. (Per Dr. D Y Chandrachud, J.)
                                                                          H
36           SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A          Disposing of the matters, the Court
           HELD:
           Per A.K. Sikri, J. (for CJI, himself and A.M. Khanwilkar,
     J.) (Majority Opinion)
B           1.1 The whole architecture of Aadhaar is devised to give
     unique identity to the citizens of this country. No doubt, a person
     can have various documents on the basis of which that individual
     can establish her identify. It may be in the form of a passport,
     Permanent Account Number (PAN) card, ration card and so on.
     For the purpose of enrolment itself number of documents are
C    prescribed which an individual can produce on the basis of which
     Aadhaar card can be issued. Thus, such documents, in a way, are
     also proof of identity. However, there is a fundamental difference
     between the Aadhaar card as a means of identity and other
     documents through which identity can be established. Enrolment
D    for Aadhaar card also requires giving of demographic information
     as well as biometric information which is in the form of iris and
     fingerprints. This process eliminates any chance of duplication.
     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
E    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
F    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. 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
G    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, they can claim various privileges and benefits etc.
     which are actually meant for these people. [Paras 55, 56][188-C-
     G; 189-A-B]
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      37


      Basheshar Nath v. Commissioner of Income Tax, Delhi                A
      and Rajasthan & Anr. [1959] Supp 1 SCR 528; Romesh
      Thappar v. State of Madras [1950] SCR 594; State of
      Karnataka & Anr. v. Shri Ranganatha Reddy & Anr.
      (1977) 4 SCC 471 : [1978] 1 SCR 641; Dattatraya
      Govind Mahajan v. State of Maharashtra (1977) 2 SCC
                                                                         B
      548 : [1977] 2 SCR 790; National Human Rights
      Commission v. State of Arunachal Pradesh (1996) 1 SCC
      742 : [1996] 1 SCR 278 – relied on.
      Ex parte Jackson 96 US 727 (1878); Lovell v. City of
      Griffin 303 US 444 (1938); Bidie v. General Accident,
      Fire and Life Assurance Corporation (1948) 2 All ER                C
      995, 998; Holmes in Towne v. Eisner Towne v. Eisner
      245 US 418; James v. Commonwealth of Australia
      (1936) AC 578 – referred to.
      Thiruvengadam, The Use of Foreign Law in
      Constitutional Cases in India and Singapore (2010) –               D
      referred to.
      1.2 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      E
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.
[Para 72][205-C-D]                                                       F
      Binoy Viswam v. Union of India & Ors. (2017) 7 SCC 59 :
      [2017] 7 SCR 1 – relied on.
      State of M.P. v. Rakesh Kohli (2012) 6 SCC 312 : [2012] 6
      SCR 661; Ashoka Kumar Thakur v. Union of India (2008) 6
      SCC 1 : [2008] 4 SCR 1; A.P. & Ors. v. MCDOWELL & Co.              G
      & Ors. (1996) 3 SCC 709 : [1996] 3 SCR 721; Rajbala &
      Ors. v. State of Haryana & Ors. (2016) 2 SCC 445 : [2015]
      12 SCR 1106 – referred to.

                                                                         H
38            SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A          2. Scope of Judicial review: Judicial review means the
     Supremacy of law. It is the power of the court to review the actions
     of the Legislature, the Executive and the Judiciary itself and to
     scrutinize the validity of any law or action. It has emerged as one
     of the most effective instruments of protecting and preserving
     the cherished freedoms in a constitutional democracy and
B
     upholding principles such as separation of powers and rule of
     law. The Judiciary, through judicial review, prevents the decisions
     of other branches from impinging on the constitutional values.
     The fundamental nature of the Constitution is that of a limiting
     document, it curtails the powers of majoritarianism from hijacking
C    the State. The power of review is the shield which is placed in the
     hands of the most judiciaries of constitutional democracies to
     enable the protection of the supreme document. [Para 74][205-
     C-D]
           Shayara Bano v Union of India (2017) 9 SCC 1 : [2017]
D          7 SCR 797; Dr. K.R. Lakshmanan v. State of T.N. &
           Anr. (1996) 2 SCC 226 : [1996] 1 SCR 395; Maneka
           Gandhi v. Union of India & Anr. (1978) 1 SCC 248 :
           [1978] 2 SCR 621 – relied on.
           3. Contours of Right to Privacy:
E           3.1 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. One of the feature of
     this judgment is that right to privacy cannot be impinged without
     a just, fair and reasonable law. It has to fulfill the test of
F    proportionality i.e. (i) existence of a law; (ii) must serve a
     legitimate State aim; and (iii) proportionality. The Court has held
     that privacy has always been a natural right which gives 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
G    body; (ii) informational privacy; and (iii) privacy of choice. Further,
     privacy is considered as a subset of personal liberty. Another
     significant jurisprudential development of this judgment is that
     right to privacy as a fundamental right is not limited to Article 21.
     On the contrary, privacy resonates through the entirety of Part III
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      39


of the Constitution which pertains to fundamental rights and, in         A
particular, Articles 14, 19 and 21. [Paras 81, 82, 84][216-F; 254-
F-G; 255-F]
        3.2 The judgment clarifies that the ‘classification’ test
adopted earlier has to be expanded and instead the law/action is
to be tested on the ground of ‘manifest arbitrariness’. When it          B
comes to examining the ‘restrictions’ as per the provisions of
Article 19 of the Constitution, the judgment proceeds to clarify
that a law which impacts dignity and liberty under Article 21, as
well as having chilling effects on free speech which is protected
by Article 19(1)(a), must satisfy the standards of judicial review
under both provisions. Therefore, such restriction must satisfy          C
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         D
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. The judgment further laid down that in the context of
Article 21, the test to be applied while examining a particular          E
provision is the ‘just, fair and reasonable test’ thereby bringing
notion of proportionality. The reasonable expectation of privacy
may vary from the intimate zone to the private zone and from the
private zone to the public arena. [Paras 87, 88 and 90][257-H;
258-A, E]                                                                F
      K.S. Puttaswamy & Anr. v. Union of India & Ors. [2017]
      10 SCR 569 : (2017) 10 SCC 1 – followed.
       3.3 Principles of Human 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         G
significance. The right of choice and right of self determination
were accepted as facets of human dignity. The basic principle of
dignity and freedom of the individual is an attribute of natural law
which becomes the right of all individuals in a constitutional
                                                                         H
40           SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A    democracy. Dignity has a central normative role as well as
     constitutional value. When reading socio-economic rights into
     human dignity, the community approach also assumes importance
     along with individualistic approach to human dignity. It has now
     been well recognised that at its core, human dignity contains three
     elements, namely, intrinsic value, autonomy and community value.
B
     These are known as core values of human dignity. These three
     elements can assist in structuring legal reasoning and justifying
     judicial choices in ‘hard cases’. Human dignity is a constitutional
     principle, rather than free standing fundamental rights. [Paras
     94, 97, 105 and 116][262-E; 264-D-E; 275-C; 279-A-B]
C          Common Cause v. Union of India (2018) 5 SCC 1;
           National Legal Services Authority v. Union of India
           (2014) 5 SCC 438; Shabnam v. Union of India & Ors.
           (2015) 6 SCC 702 : [2015] 8 SCR 289; Jeeja Ghosh
           & Another v. Union of India & Ors. (2016) 7 SCC 761
D          : [2016] 4 SCR 638; Aruna Ramachandra Shanbaug
           v. Union of India & Ors. (2011) 4 SCC 454 : [2011] 4
           SCR 1057 – relied on.
           Gobind v. State of M.P. (1975) 2 SCC 148 : [1975] 3
           SCR 946; Kharak Singh v. State of U.P. AIR 1963 SC
E          1295 : [1964] 1 SCR 332 – referred to.
           Daniel Solove, Understanding Privacy, Cambridge,
           Massachusetts: Harvard University Press, 2008;
           Ronald Dworkin, Taking Rights Seriously (A&C
           Black, 2013) 239; Ronald Dworkin, Is Democracy
F          Possible Here? Principles for a New Political Debate
           (Princeton University Press, 2006); Justice for
           Hedgehogs (2011) Harvard University Press, 2011;
           Kenneth W. Simons, “Dworkin’s Two Principle of
           Dignity: An Unsatisfactory Non-Consequentialist
           Account of Interpersonal Moral Duties”, 90 Boston
G          Law Rev. 715 (2010)]; ‘Human Dignity and Judicial
           Interpretation of Human Rights’ Published in the
           European Journal of International Law on September
           01, 2008 – referred to.

H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     41


      4. Doctrine of Proportionality:                                   A
      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 democratic society for a legitimate aim; and (c) the extent of     B
such interference must be proportionate to the need for such
interference. [Para 117][282-D-E]
      Modern Dental College and Research Centre v. State
      of Madhya Pradesh (2016) 7 SCC 353 – relied on.
      5. Surveillance:                                                  C

      5.1 Whether the architecture of the Aadhaar project enables
the State to create a regime of surveillance?; and (b) whether
there are adequate provisions for data protection?
       The provisions of the Aadhaar Act and the machinery which        D
the Authority has created for data protection as demonstrated by
the respondents in the powerpoint presentation showed that it is
very difficult to create profile of a person simply on the basis of
biometric and demographic information stored in CIDR. Insofar
as authentication is concerned, the respondents rightly pointed
out that there are sufficient safeguard mechanisms. It was              E
specifically submitted that there were security technologies in
place, 24/7 security monitoring, data leak prevention,
vulnerability management programme and independent audits as
well as the Authority’s defence mechanism. It was further pointed
out that the Authority has taken appropriate pro-active protection      F
measures, which included disaster recovery plan, data backup
and availability and media response plan. The respondents also
pointed out that all security principles are followed inasmuch as:
(a) there is PKI-2048 encryption from the time of capture,
meaning thereby, as soon as data is given at the time of enrolment,
there is an end to end encryption thereof and it is transmitted to      G
the Authority in encrypted form. The said encryption is almost
foolproof and it is virtually impossible to decipher the same; (b)
adoption of best-in-class security standards and practices; and
(c) strong audit and traceability as well as fraud detection. Above
                                                                        H
42           SUPREME COURT REPORTS                     [2018] 8 S.C.R.


A    all, there is an oversight of Technology and Architecture Review
     Board (TARB) and Security Review Committee. This Board and
     Committee consist of very high profiled officers. Therefore, the
     Act has endeavoured to provide safeguards [Para 153][308-E-
     H; 309-A-B]
B         Selvi & Ors. v. State of Karnataka (2010) 7 SCC 263 :
          [2010] 5 SCR 381; Kharak Singh v. State of U.P. AIR
          1963 SC 1295 : (1964) 1 SCR 332; District Registrar
          and Collector, Hyderabad and Anr. v. Canara Bank and
          Ors. (2005) 1 SCC 496 : [2004] 5 Suppl. SCR 833 –
          referred to.
C
          R. v. Oakes [1986] 1 SCR 103; U.S. v. Jones 132 S.Ct.
          945 (2012); Zakharov v. Russia (2015) Application No.
          47143/2006; Digital Rights Ireland Ltd. v. Minister for
          Communication, Marine and Natural Resources [2014]
          All ER (D) 66 (Apr); S and Marper v. United Kingdom
D         (2008) ECHR 1581 – referred to.
          Robert Alexy, A Theory of Constitutional Rights,
          (Oxford, Oxford University Press, 2002); John Donne,
          XVII. Mediation, in Devotions upon Emergent
          Occasions 107, 108-09 (Uyniv. Of Mich. Press 1959)
E         (1624); M Kumm, ‘The Idea of Socratic Contestation
          and the Right to Justification: The Point and Purpose
          of Rights-Based Proportionality Review’ (2010) 4 Law
          & Ethics of Human Rights 141; M Kumm,
          ‘Institutionalising Socratic Contestation: The
F         Rationalist Human Rights Paradigm, Legitimate
          Authority and the point of Judicial Review’ (2007) 1
          European Journal of Legal Studies; K Moller, The
          Global Model of Constitutional Rights (Oxford,
          Oxford University Press, 2012); M Kumm, ‘Political
          Liberalism and the Structure of Rights: On the Place
G         and Limits of the Proportionality Requirement’ in
          Pavlakos (ed), Law, Rights and Discourse: The Legal
          Philosophy of Robert Alexy (Oxford, Hart Publishing,
          2007) 131; Moller, the Global Model of Constitutional
          Rights (Oxford, Oxford University Press, 2012) ch
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                    43


      7; Alexy’s ‘Second Law of Balancing’, which he                   A
      proposes in the Postscript to A Theory of
      Constitutional Rights (Oxford, Oxford University
      Press, 2002); ‘Necessity and Proportionality: Towards
      A Balanced Approach?’, Hart Publishing, Oxford and
      Portland, Oregon, 2016; S Choudhry, ‘So What Is the
                                                                       B
      Real Legacy of Oakes? Two Decades of
      Proportionality Analysis under the Canadian Charter’s
      Section 1’ (2006) 34 Supreme Court Law Review 501
      – referred to.
       5.2 Internet access is becoming cheaper by the day, which
can be accessed not only through the medium of desktop                 C
computers or laptops and even other handy gadgets like smart
phones. However, the use of such technologies is at the cost of
giving away personal information, which is in the realm of privacy.
In order to connect with such technologies and avail their benefits,
the users are parting with their biometric information like            D
fingerprints and iris as well as demographic information like their
names, parentage, family members, their age, even personal
information like their sex, blood group or even the ailments they
are suffering from. Not only this, use of said facilities on net or
any portal like Apple, Google, Facebook etc. involves tracking
their movements, including the nature of activities, like the kind     E
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. These        F
have raised concerns about the privacy and protection of data.
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. When it comes to the State or the
instrumentality of the State, the matter has to be taken with all      G
seriousness, on the touchstone of constitutionalism and the
concept of limited Government. [Para 159, 160, 161 and
162][311-B, G-H; 312-A-B, C-D, G]

                                                                       H
44            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A          5.3 Law on Data Protection:
            5.3.1 Legislation in India. The only existing legislation
     covering data protection related to biometric information are
     Section 43A and Section 72A of the IT Act and the Information
     Technology (Reasonable Security Practices and Procedures and
B    Sensitive Personal Data or Information) Rules, 2011. Although
     the IT Act and Rules do not determine the constitutionality of
     use of biometric data and information by the Aadhaar Act and
     Rules, they are instructive in determining the safeguards that
     must be taken to collect biometric information. Section 43A of
     the IT Act attaches liability to a body corporate, which is
C    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
D    Personal Data Rules to include information relating to biometric
     data. Similarly, Section 72A of the IT Act makes intentional
     disclosure of ‘personal information’ obtained under a contract,
     without consent of the parties concerned and in breach of a lawful
     contract, punishable with imprisonment and fine. Rule 2(i) of the
     Sensitive Personal Data Rules define “personal information” to
E    mean any information that relates to a natural person, which, either
     directly or indirectly, in combination with other information
     available or likely to be available with a body corporate, is capable
     of identifying such person. Thus, biometrics will form a part of
     “personal information”. The Sensitive Personal Data Rules
F    provide for additional requirements on commercial and business
     entities (body corporates as defined under Section 43A of the IT
     Act) relating to the collection and disclosure of sensitive personal
     data (including biometric information). [Paras 163-166][313-B-
     E; 314-D-F; 315-A-B]
G          5.3.2 Position in other countries: (a) EUGDPR (European
     Union 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
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     45


right to informational privacy. It deals with all kinds of processing   A
of personal data while delineating rights of data subjects and
obligations of data processors in detail. (b) Biometric Privacy
Act in the United States of America. [Para 166, 168][316-G; 317-
A-B; 318-D-E]
       S and Marper v. United Kingdom [2008] ECHR 1581                  B
      – referred to.
      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,              C
      and repealing Directive 95/46/EC (General Data
      Protection Regulation) – referred to.
      5.3.3 Case laws: Data collection, usage and storage
(including biometric data) in Europe requires adherence to the
principles of consent, purpose and storage limitation, data             D
differentiation, data exception, data minimization, substantive and
procedural fairness and safeguards, transparency, data protection
and security. Only by such strict observance of the above
principles can the State successfully discharge the burden of
proportionality while affecting the privacy rights of its citizens.
The jurisprudence with respect to collection, use and retention         E
of biometric information in the United States differs from the EU.
In the US context, there is no comprehensive data protection
regime. This is because of the federal system of American
government, there are multiple                  levels of       law
enforcement¯federal, state, and local. Different states have            F
differing standards for informational privacy. Thus, importance
to data protection in processing the data of the citizens is an
accepted norm. Observance of this fundamental principle is
necessary to prevent a disproportionate infringement of the
Fundamental Right of Privacy of a citizen. [Paras 187, 188, 189,
190][326-A-B, E-F]                                                      G
      Digital Rights Ireland Ltd v. Minister for
      Communication, Marine and Natural Resources [2014]
      All ER (D) 66 (Apr); Tele2 Sverige AB v. Post-och
      telestyrelsen and Secretary of State for the Home
      Department v. Tom Watson, Peter Brice, Geoffrey                   H
46            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A          Lewis, Joined Cases C-203/15 and C-698/15, 2016;
           BverfG 2.03.2010, 1 BvR 256/ 08, 1 BvR 263 / 08, 1
           BvR 586/08; Maximillian Schrems v. Data Protection
           Commissioner [2016] 2 W.L.R. 873; Szabo and Vissy v.
           Hungary Eur. Ct. H.R. 2016; 186 – referred to.
B           6. Data Minimisation: Demographic information, both
     mandatory and optional, and photographs does not raise a
     reasonable expectation of privacy under Article 21 unless there
     is special circumstances such as juveniles in conflict of law or a
     rape victim’s identity. Today, all global ID cards contain
     photographs for identification alongwith address, date of birth,
C    gender etc. The demographic information is readily provided by
     individuals globally for disclosing identity while relating with
     others and while seeking benefits whether provided by
     government or by private entities, be it registration for citizenship,
     elections, passports, marriage or enrolment in educational
D    institutions. Email Ids and phone numbers are also available in
     public domain. 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,
E    ethnicity, language, records of entitlement, income or medical
     history. Thus, sensitive information specifically stand excluded.
     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
F    to Regulation 26 is also to the same effect. Thus, the principle of
     data minimization is largely followed.[Paras 193-195][327-F-H;
     328-A-C]
           7. Some other provisions which are challenged on the basis
     of threat to security of the data. Section 2(c) pertains to
G    authentication. It is a process by which Aadhaar number along
     with demographic information or biometric information of an
     individual is submitted to the CIDR for its verification. On
     submission thereof, the CIDR verifies the correctness or lack of
     it. Section 10 lays down that the Authority may engage one or
     more entities to establish or maintain the CIDR and to perform
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                   47


any other functions as may be specified by regulations. While         A
seeking authentication, neither the location of the person whoso
identity is to be verified nor the purpose for which authentication
of such identity is needed, comes to the knowledge of the
Authority and, therefore, such data collected by the Authority.
Therefore, the threat to real time surveillance and profiling may
                                                                      B
be far-fetched. The authentication record would only contain
information about the identity about the RE. It will give
information only about the RE (nic.in) and not about the
organisation which is requiring authentication through the RE.
In most cases the authentication is one time. [Paras 196,
197][328-G; 329-B-C]                                                  C
      8. Time Period for Data Retention:
       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)      D
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 Service Agencies to retain
the authentication logs for a period of 2 years and then archive
them for 5 years. It is required to be deleted only after 7 years     E
unless retained by a court. There is is no reason for archiving
the authentication transaction data for a period of five years.
Retention of this data for a period of six months is more than
sufficient after which it needs to be deleted except when such
authentication transaction data are required to be maintained by
a Court or in connection with any pending dispute. Regulations        F
26 and 27 shall, therefore, be amended accordingly. [Para
205][332-E-F, H; 333-A]
       9. Data Protection and Security: Apprehension of
petitioners was that there were not enough safeguards for data
protection and security in the Act. The following explanation         G
furnished by the respondents on various facets ensures data
protection and security to a considerable extent:
     (a) CIDR – Regulation 3(i) & (j) of Aadhaar (Data Security)
Regulation 2016 enables partitioning of CIDR network into zones
                                                                      H
48            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A    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
B
     partitioning, firewalling and anonymisation of decrypted biometric
     data. Breaches of penalty are made punitive by Chapter VII of
     the Act. [Paras 207, 208][333-B, G-H; 334-A-B]
           (b) Requesting Entities (AUA and KUA) – Other identity
     information is shared with Requesting Entity (AUAs and KUAs)
C    only for the limited purpose of authentication. The data is
     transferred from the RE to the ASA (Authentication Service
     Agency) to the CIDR in an encrypted manner through a leased
     line circuitry using secure Protocols. The storage of data
     templates is in safely located servers with no public internet inlet/
D    outlet, and offline storage of original encrypted data (PID blocks).
     There are safety and security provisions such as audit by
     Information Systems Auditor. REs are appointed through
     agreement. REs can enter into agreement with sub-AUA or sub-
     KUA with permission of the UIDAI. Whatever identity information
     is obtained by the requesting entity is based on a specific consent
E    of the Aadhaar number holder. The e-KYC data shared with the
     RE 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
F    short period. Full identity information is never transmitted back
     to RE. There is a statutory bar from sharing Biometric
     information. The Data centres of ASA, REs and CIDR should be
     within the territory of India. [Para 209][334-C-F]
           (c) Enrolment Agencies and Registrars – The enrolment
G    and Authentication processes are strongly regulated so that data
     is secure. The Enrolment agency, which collects the biometric
     and demographic of the individuals during enrolment, is appointed
     either by UIDAI or by a Registrar. The registrar are appointed
     through MoUs or agreements for enrolment and are to abide by
     a code of conduct and processes, policies and guidelines issued
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                 49


by the authority. They are responsible for the process of           A
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, enrolling agencies are obliged to use
the software provided or authorized by UIDAI for enrolment
                                                                    B
purpose. The standard software has security features as specified
by Authority. All equipment used are 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    C
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
                                                                    D
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 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. [Para 210][334-G-      E
H; 335-A-E]
      (d) Authentication Service Agency – Authentication only
becomes available through the Authentication Service Agency
(ASA). They are regulated by the Aadhaar (Authentication)
Regulations, 2016. They are to use certified devices, equipment,    F
or software are duly registered with or approved or certified by
the Authority/agency. The systems and operations are audited
by information system auditor. The REs pass the encrypted data
to the CIDR through the ASA and the response (Yes/No
authentication or e-KYC information) also takes the same route
back. The server of the ASA has to perform basic compliance         G
and completeness checks on the authentication data packet before
forwarding it to the CIDR. [Para 211]335-F-H]
    (e) Hacking – So far there has been no incidence of hacking.
However, the authority is conscious of the hackers and it
                                                                    H
50            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A    constantly updates itself to safe guard the data. Of late certain
     reports have appeared in newspapers to the effect that some
     people could hack the website of CIDR, though it is emphatically
     denied by the UIDAI. [Para 212][336-A-C]
           (f) Biometric Solution Providers – With respect to foreign
B    companies owning software, Respondents submit that UIDAI has
     entered into licensing agreements with foreign biometric solution
     providers (BSP) for software. Even though the source code of
     the software are retained by the BSP as it constitutes their
     Intellectual property, the data in the server rooms is secure as
     the software operates automatically and the biometric data is
C    stored offline. There is no opportunity available to BSP to extract
     data as they have no access to it. [Para 213][336-D-E]
           10. Substantive, Procedural or Judicial Safeguards:
           The Union Government, on 31 July 2017, had constituted
D    a committee chaired by Retd. Justice B N Srikrishna, former
     Judge of the Supreme Court of India to review data protection
     norms in the country and to make recommendations. The
     Committee recently released its report and the first draft of the
     Personal Data Protection Bill, 2018 which comprehensively
     addresses the processing of personal data where such data has
E    been collected, disclosed, shared or otherwise processed within
     the territory of India. The bill has incorporated provisions and
     principles from the Europe’s General Data Protection Regulation
     (EUGDPR). The Bill largely incorporates data protection
     principles from the EUGDPR and EU data protection
F    jurisprudence, including fair and reasonable processing of data,
     purpose limitation, collection limitation, lawful processing,
     storage limitation, data quality and accountability. The Draft bill
     and the report cull out rights and obligations of the data fiduciary
     and data controller respectively. These rights include the right
     to access and correction, the right to data portability and right to
G    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,
H    in an important addition, capable of being withdrawn. The
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     51


Authority under the Bill is obligated and empowered to ensure           A
protection of data from misuse and compromise. [Paras 223, 225,
229][340-F-G; 341-B-D]
      11. Privacy: Whether Aadhaar Act violates right to privacy
and is unconstitutional on this ground?
      11.1 As per Section 7 of the Aadhaar Act in case an individual    B
wants to avail any subsidy benefit or services, she is required to
produce the Aadhaar number and, therefore, it virtually becomes
compulsory for such 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         C
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. The Parliament has now passed Aadhaar Act, 2016.
Therefore, law on the subject in the form of a statute very much        D
governs the field and, thus, first requirement stands satisfied.
In the Statement of Objects and Reasons, it is inter alia mentioned
that though number of social benefits schemes have been floated
by the Government, the failure to establish identity of an individual
has proved to be a major hindrance for successful implementation        E
of those programmes as it was becoming difficult to ensure that
subsidies, benefits and services reach the intended beneficiaries
in the absence of a credible system to authenticate identity of
beneficiaries. The rationale behind Section 7 lies in ensuring
targeted delivery of services, benefits and subsidies which are
funded from the Consolidated Fund of India. In discharge of its         F
solemn Constitutional obligation to enliven the Fundamental
Rights of life and personal liberty (Article 21) to ensure Justice,
Social, Political and Economic and to eliminate inequality (Article
14) with a view to ameliorate the lot of the poor and the Dalits,
the Central Government has launched several welfare schemes.            G
Some such schemes are PDS, scholarships, mid day meals, LPG
subsidies, etc. These schemes involve 3% percentage of the
GDP and involve a huge amount 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
                                                                        H
52           SUPREME COURT REPORTS                     [2018] 8 S.C.R.


A    the same concept of human dignity, which the petitioners seek to
     bank upon. Right of everyone to adequate food no more remains
     based on Directive Principles of State Policy (Art 47), though the
     said principles remain a source of inspiration. This entitlement
     has turned into a Constitutional fundamental right. The scheme
     of the Act designs a targeted public distribution system for
B
     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. 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
C    populace for whom they are meant. This is naturally a legitimate
     State aim. [Paras 261, 263, 266][359-B-D; 360-D-E; 364-D-F;
     365-A-B, D]
          His Holiness Kesavananda Bharati Sripadagalavaru
          v. State of Kerala & Anr. (1973) 4 SCC 225 : [1973]
D         Suppl. SCR 1 – followed.
          Gobind v. State of M.P. (1975) 2 SCC 148 : [1975] 3
          SCR 946; Chairman, All India Railway Recruitment
          Board v. K Shyam Kumar and others (2010) 6 SCC 614
          : [2010] 6 SCR 291; Common Cause v. Union of India
E         [2014] 3 SCR 289; PUCL v. Union of India (2011) 14
          SCC 331; G. Sundarrajan v. Union of India (2013) 6
          SCC 620 – referred to.
          Jordan & Ors v. State (2002) ZACC 22; Cruzan v.
          Director, Missouri Dept. of Health 497 US 361 (1990)
F         – referred to.
           11.2 In order to meet the test of proportionality, four sub-
     components of proportionality need to be satisfied: (a) A measure
     restricting a right must have a legitimate goal (legitimate goal
     stage). (b) It must be a suitable means of furthering this goal
G    (suitability or rationale connection stage). (c) There must not be
     any less restrictive but equally effective alternative (necessity
     stage). (d) The measure must not have a disproportionate impact
     on the right holder (balancing stage). [Para 267][367-E-F]
          11.3 Whether these components meet the required
     parameters in the instant case.
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                   53


       (a) Legitimate Goal Stage: The purpose of Aadhaar Act, as      A
captured in the Statement of Objects and Reasons and sought to
be implemented by Section 7 of the Aadhaar Act, is to achieve
the stated objectives. [Paras 268, 276][363-G; 371-A-B]
      People’s Union for Civil Liberties (PUCL) v. Union of
      India (2001) 5 SCALE 303; State of Bihar & Ors. v.              B
      Project Uchcha Vidya, Sikshak Sangh & Ors. Civil
      Appeal No. 6626-6675 of 2001; Ashoka Thakur v.
      Union of India Writ Petition (Civil) No. 265 of 2006,
      judgment delivered on April 10, 2008; Paschim Banga
      Ket Mazdoor Samity v. State of West Bengal (1996) 4
      SCC 37 : [1996] 2 Suppl. SCR 331; Mohini Jain v.                C
      State of Kerala & Ors. (1992) 3 SCC 666 : [1992] 3
      SCR 658; Unnikrishnan v. State of Andhra Pradesh
      (1993) 1 SCC 645 : [1993] 1 SCR 594; Olga Tellis &
      Ors. v. Bombay Municipal Corporation & Ors. [1985]
      SCR 2 Suppl. 51; Francis Coralie Mullin v. The                  D
      Administrator, Union Territory of Delhi & Ors. [1981]
      2 SCR 516 – relied on.
      (b) Suitability or rationale connection stage: The measures
which are enumerated and been taken as per the provisions of
Section 7 read with Section 5 of the Aadhaar Act are rationally       E
connected with the fulfillment of the objectives contained in the
Aadhaar Act. The scheme for enrolling under the Aadhaar Act
and obtaining the Aadhaar number is optional and voluntary. It is
given the nomenclature of unique identity. A person with Aadhaar
number gets an identity. By providing that the benefits for various
welfare schemes shall be given to those who possess Aadhaar           F
number and after undergoing the authentication as provided in
Section 8 of the Aadhaar Act, the purpose is to ensure that only
rightful persons receive these benefits. It becomes the duty of
the Government to ensure that it goes to deserving persons.
Therefore, second component also stands fulfilled. [Paras 277,        G
279][371-C-D; 372-C-D]
      (c) Necessity Stage: The manner in which malpractices
have been committed in the past leaves to hold that apart from
the system of unique identity in Aadhaar and authentication of
the real beneficiaries, there is no alternative measure with lesser
                                                                      H
54            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A    degree of limitation which can achieve the same purpose. [Para
     280][372-E-F]
            (d) Balancing Stage: No doubt, there is a right to privacy,
     which is now entrenched in fundmental rights. On the other hand,
     it is the rights of those persons whose dignity which is sought to
B    be ensured by giving them the facilities which are necessary to
     live as dignified life. Therefore, balancing has to be done at two
     levels, rights to privacy on one hand and right to food, shelter
     and employment on the other hand. In the first instance, it is to
     be seen as to whether the petitioners claim on the information
     supplied while authentication to be protected is based on
C    reasonable expectation. ‘Reasonable Expectation’ involves two
     aspects. First, the individual or individuals claiming a right to
     privacy must establish that their claim involves a concern about
     some harm likely to be inflicted upon them on account of the
     alleged act. This concern ‘should be real and not imaginary or
D    speculative’. Secondly, ‘the concern should not be flimsy or
     trivial’. It should be a reasonable concern. [Para 285, 288,
     289][374-A-B; 376-E-G]
            Katz v. US 389 U.S. 347; Smith v. Marlyand 442 US
            735; R. Wood v. Commissioner (2010) 1 WLR 123 –
            referred to.
E
            11.4 The second facet of balancing, namely, balancing of
     two fundamental rights. The Aadhaar Act truly seeks to secure
     to the poor and deprived persons an opportunity to live their life
     and exercise their liberty. By ensuring targeted delivery through
     digital identification, it not only provides them a nationally
F    recognized identity but also attempts to ensure the delivery of
     benefits, service and subsidies with the aid of public exchequer/
     Consolidated Fund of India. National Security Food Act, 2013
     passed by the Parliament seeks to address the issue of food,
     security at the household level. The scheme of that Act is aimed
     at providing food grains to those belonging to BPL categories.
G
     Like the MGNREGA Act, 2005 takes care of employment. The
     MGNREGA Act has been enacted for the enhancement,
     livelihood, security of the households in rural areas of the country.
     It guarantees at least 100 days of wage employment in every
     financial year to at least one able member of every household in
H    the rural area on assets creating public work programme.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     55


Sections 3 and 4 of the MGNREGA Act contain this guarantee.             A
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
                                                                        B
Poverty Line people in rural areas. 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           C
technology becomes a vital tool of ensuring good governance in
a social welfare state. Therefore, the Aadhaar Act meets the test
of balancing as well. Thus, even when two aspects of the
fundamental rights of the same individual, which appear to be in
conflict with each other, is done, the Aadhaar Act has struck a
                                                                        D
fair balance between the right of privacy of the individual with
right to life of the same individual as a beneficiary. In the face of
the all pervading prescript for accomplished socio-economic
rights, that need to be given to the deprived and marginalised
section of the society, as the constitutional imperative embodied
in these provisions of the Act, it is entitled to receive judicial      E
imprimatur. [Para 298, 309, 313][379-G-H; 380-A-D; 390-A-B;
394-G-H; 395-A-B]
      People’s Union for Civil Liberties (PUCL) & Anr. v.
      Union of India & Anr. (2003) 4 SCC 399 : [2003] 2
      SCR 1136; Subramanian Swamy v. Union of India,                    F
      Ministry of Law & Ors. (2016) 7 SCC 221 : [2016] 3
      SCR 865 – relied on.
      Government of the Republic of South Africa & Ors. v.
      Grootboom (2000) ZACC 19; Budina v. Russia App.
      No. 45603/05 decided on 18.06.2009; Vernonia School
      District 47J v. Acton et ux., Guardians Ad Litem for              G
      Acton 515 US 646 (1995) – referred to.
      12. Exclusion: The Authority has claimed that biometric
accuracy is 99.76%. Petitioner’s contention was that where more
than 110 crores of persons have enrolled themselves, even
0.232% failure would be a phenomenal figure the rate of exclusion       H
56            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A    is alarming and this would result in depriving needy persons to
     enjoy their fundamental rights, which is the so-called laudable
     objective trumpeted by the respondents. The Act is aimed at
     achieving the public purpose, striving to benefit millions of
     deserving people. It cannot be invalidated only on the ground
     that there is a possibility of exclusion of some of the seekers of
B
     these welfare schemes. There is also situation where the
     formation of fingerprints may undergo change for various reasons.
     Even iris test can fail due to certain reasons including blindness
     of a person. No person rightfully entitled to the benefits shall be
     denied the same on such grounds. It would be appropriate if a
C    suitable provision be made in the concerned 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
D
     Act. It could have happened in other cases as well. 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. The Government cannot enlarge
     the scope of subsidies, services and benefits. ‘Benefits’ should
E    be such which are in the nature of welfare schemes for which
     resources are to be drawn from the Consolidated Fund of India.
     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.
     Notifications which are issued under Section 7 of the Aadhaar
F
     Act 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. The ‘benefits’ and ‘services’ as mentioned in Section 7
G    should be those which have the colour of some kind of subsidies
     etc., namely, welfare schemes of the Government whereby
     Government is doling out such benefits which are targeted at a
     particular deprived class. The expenditure thereof has to be
     drawn from the Consolidated Fund of India. On that basis, CBSE,
     NEET, JEE, UGC etc. cannot make the requirement of Aadhaar
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     57


mandatory as they are outside the purview of Section 7 and are          A
not backed by any law. [Paras 314, 318, 319, 321, 322][395-E-F;
396-F-G; 397-A-D; 398-A-B, D-H; 399-C-D]
       13. Children: Article 21A of the Constitution guarantees
right to education and makes it fundamental right of the children
between 6 years and 14 years of age. Such a right cannot be taken       B
away by imposing requirement of holding Aadhaar card, upon the
children. In view thereof, admission of a child 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,       C
when they have fundamental right to education, would not be
covered by Section 7. [Paras 324, 325][400-B-C]
       R.D. Upadhyay v. State of Andhra Pradesh & Ors.
       (2007) 15 SCC 49 – relied on.
       Murray v. Big Pictures (UK) Ltd. (2008) 3 WLR 1360               D
       – referred to.
       14. Issue of validity of some of the other provisions of the
Aadhaar Act.
       14.1 Insofar as Section 2(l) read with Regulation 23 of the
Aadhaar (Enrolment and Update) Regulations is concerned which           E
deals with ‘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
                                                                        F
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        G
to CIDR, there is no basis of the apprehension expressed by the
petitioners. [Para 334][412-B-D]
       14.2 Section 3, by the very language thereof, mentions that
it is an enabling provision which ‘entitles’ every resident to obtain
Aadhaar number. Therefore, it is voluntary in nature.
                                                                        H
58            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A    Apprehension of petitioner that section 3 is mandatory stands
     assuaged. [Para 336][412-F-G; 414-A]
            14.3 Section 33 provides for disclosure of information in
     certain cases. The challenge to this provision is predicated on
     the ground that it provides for the use of Aadhaar database for
     police verification which is against the ethos of Article 20(3) of
B
     the Constitution which is a rule against self incrimination. Sub-
     section (2) of Section 33 enables disclosure of information
     including identity information records in the interest of national
     security. Disclosure of information in the interest of national
     security cannot be faulted with. However, giving of such important
C    power in the hands of Joint Secretary may not be appropriate.
     There has to be a higher ranking officer along with, preferably, a
     Judicial Officer. The provisions contained in Section 33(2) of the
     Act to the extent it gives power to Joint Secretary is, therefore,
     struck down giving liberty to the respondents to suitably enact a
     provision on the aforesaid lines, which would adequately protect
D
     the interest of individuals. [Paras 343, 349][415-G-H; 416-A; 419-
     G-H; 420-A-B]
            14.4 Section 47 provides that the cognizance would be taken
     only on a complaint made by the Authority or any officer or person
     authorised by it. Petitioners feel aggrieved by this provision as
E    it does not permit an individual citizen whose rights are violated,
     to initiate the criminal process. It would be in the fitness of things
     if Section 47 is amended by allowing individual/victim whose right
     is violated, to file a complaint and initiate the proceedings. Section
     48 cannot be treated as vague or arbitrary. ‘Public Emergency’
F    is the expression which has been used in several other
     enactments and held to be constitutional. It can always be subject
     to scrutiny of the Courts. [Paras 352, 353, 354][420-F-G; 421-F-
     G]
            Ex-Armymen’s Protection Services Private Limited v.
            Union of India & Ors. (2014) 5 SCC 409 : [2014] 3
G           SCR 359; People’s Union for Civil Liberties (PUCL) v.
            Union of India & Anr. (1997) 1 SCC 301 : [1996] 10
            Suppl. SCR 321 – relied on.
            Raj Kumar Gupta v. Lt. Governor, Delhi & Ors. (1997)
            1 SCC 556 : [1996] 8 Suppl. SCR 464; State (NCT of
H           Delhi) v. Sanjay (2014) 9 SCC 772 : [2014] 9 SCR 1063
            – referred to
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     59


      R. v. Oakes (1986) 1 SCR 103; Quebec Ass’n of                     A
      Protestant Sch. Bds. v. Quebec (A.G.), (1984) 2 SCR 66;
      Vriend v. Alberta (1998) 1 SCR 493; R. v. Zundel (1992)
      2 SCR 731; R. v. Big M Drug Mart Ltd. (1985) 1 SCR
      295 – referred to.
      Nicholas Emiliou, The Principle of Proportionality in             B
      European Law: A comparative Study 5 (Kluwer Law
      Int’l. 1996) – referred to.
      14.5 Section 59 uses the expression ‘anything done or any
action under the resolution’. This terminology used in the
provision by the legislature is clearly to cover all actions of the     C
Authority including enrolment of individuals into Aadhaar 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     D
in the manner the petitioners suggest would have the effect of
annulling Section 59 itself. Such an interpretation cannot be
countenanced. [Para 371][426-F-H; 427-A]
      West Ramnad Electric Distribution Co., Ltd. v. State of
      Madras & Anr. [1963] 2 SCR 747 – followed.                        E

      Bishambhar Nath Kohli & Ors. v. State of Uttar Pradesh
      & Ors. [1966] 2 SCR 158; State of Mysore & Anr. v. D.
      Achiah Chetty, Etc.(1969) 1 SCC 248 : [1969] 3 SCR
      55; State of Karnataka v. State of Tamil Nadu & Ors.
      (2017) 3 SCC 362 : [2016] 8 SCR 499 – relied on.                  F
      14.6 When the Aadhaar scheme/project under the Act has
been saved from the challenge to its constitutionality, there is no
reason to invalidate the enrolments which were made prior to
the passing of this Act as it would lead to unnecessary burden
and exercise of enrolling these persons all over again. Instead         G
the problem can be solved by eliciting ‘consent’ of all those persons
who were enrolled prior to the passing of the Act. Since, enrolment
is voluntary in nature, those who specifically refuse to give the
consent, they would be allowed to exit from Aadhaar scheme.
After all, by getting Aadhaar card, an individual so enrolled is
                                                                        H
60           SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A    getting a form of identity card. It would still be open to such an
     individual to make use of the said Aadhaar number or not. Those
     persons who need to avail any subsidy, benefit or service would
     need Aadhaar in any case. It would not be proper to cancel their
     Aadhaar cards. If direction is given to invalidate all those
     enrolments which were made prior to 2016 then such persons
B
     will have to undergo the rigours of getting themselves enrolled
     all over again. On the other hand, those who do not get any
     benefit of the nature prescribed under Section 7 of the Act, it
     would always be open for them not to make use of Aadhaar card
     or to make use of this card in a limited sense, namely, showing it
C    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. The validity of Section 59 is upheld. As a
     corollary, Aadhaar for the period from 2009 to 2016 also stands
     validated. [Para 373][431-A-F]
D          15. Limited Government, Good Governance, Constitutional
     Trust and Constitutionalism:
             The matter is examined keeping in view the fundamental
     principles of constitutionalism in mind, and more particularly the
     principle that the concept of ‘limited government’ is applicable
E    having regard to the fact that the three limbs of the State are to
     act within the framework of a written Constitution which assigns
     specific powers to each of the wing of the State and this
     presupposes that the sovereign power of the Parliament is
     circumscribed by the provisions of the Constitution and the
     legislature is supposed to Act within the boundaries delineated
F    by the Constitution. The constitutionalism, which is the bedrock
     of rule of law, is to be necessarily adhered to by the Parliament.
     Further, the power of judicial review which is accorded to the
     courts can be exercised to strike down any legislation or executive
     action if it is unconstitutional. It is difficult to agree with the
G    sweeping proposition advanced by the petitioners that the Aadhaar
     project is destructive of limited government and constitutional
     trust. [Paras 387, 388][443-D-G]
           Kesavananda Bharati v. State of Kerala (1973) 4 SCC
           225 : [1973] Suppl. SCR 1 – followed.
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                    61


      State of M.P. v. Thakur Bharat Singh (1967) 2 SCR                A
      454; Gobind v. State of M.P. (1975) 2 SCC 148 : [1975]
      3 SCR 946; S.P. Sampath Kumar v. Union of India
      (1987) 1 SCC 124 : [1987] 1 SCR 435; Sub-Committee
      on Judicial Accountability v. Union of India (1991) 4
      SCC 699; I.R. Coelho v. State of T.N. (2007) 2 SCC 1 :
                                                                       B
      [2007] 1 SCR 706; Nandini Sundar v. State of
      Chhattisgarh (2011) 7 SCC 547 : [2011] 8 SCR 1028;
      Minerva Mills Ltd. v. Union of India (1980) 3 SCC 625
      : [1981] 1 SCR 206; Manoj Narula v. Union of India
      (2014) 9 SCC 1 : [2014] 9 SCR 965; Government of
      NCT of Delhi v. Union of India (2018) SCC Online SC              C
      661 – referred to.
      Divan quotes Seervai in his book Constitutional Law
      of India; H.M. Seervai, Constitutional Law of India: A
      Critical Commentary (N.M. Tripathi Private Limited,
      Bombay, 4th Ed., Vol. 2, 1993) at pages 1928-1937 –              D
      referred to.
      16. Money Bill: Is the Aadhaar Act a validly enacted law
having been passed as a Money Bill?
      16.1 Section 23(2)(h) enables the Authority to specify the
manner of use of Aadhaar with specific purpose in mind, namely,        E
for providing or availing of various subsidies, benefits and
services. These are relatable to Section 7. However, it uses the
expression ‘other purposes’ as well. The expression ‘other
purposes’ can be read ejusdem generis which would have its
relation to subsidies, benefits and services as mentioned in
Section 7 and it can be confined only to that purpose i.e. scheme      F
of targeted delivery for giving any grant, relief etc. when it is
chargeable to Consolidated Fund of India. Therefore, this
provision, can be read as incidental to the main provision and
would be covered by Article 110(g) of the Constitution. [Para
410][464-B-D]                                                          G
      16.2 Section 54 confers power upon the Authority to make
regulations consistent with the Act and rules made thereunder,
for carrying out the provisions of the Act. The interpretation given
to Section 23(2)(h) would apply to Section 54(2)(m) as well and,
therefore, there is no problem with this provision also. Now
                                                                       H
62            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A    Section 57 of the Aadhaar Act mentions that Aadhaar Act would
     not prevent use of Aadhaar number for other purposes under the
     law. It is only an enabling provision as it permits the use of Aadhaar
     number for other purposes as well. This provision is to be viewed
     in the backdrop that Section 7 is the core provision. It has
     substantial nexus with the appropriation of funds from the
B
     Consolidated Fund of India and is directly connected 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. The Authority is the performer in chief, the
C    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
D
     of India (Section 24). [Paras 410, 411][464-D-E, F-H; 465-A-B]
           Kuldip Nayar & Ors. v. Union of India & Ors. (2006) 7
           SCC 1 : [2006] 5 Suppl. SCR 1 – relied on.
           Hari Ram & Ors. v. Babu Gokul Prasad (1991) Supp.
           2 SCC 608; M/s. Saru Smelting (P) Ltd. v. Commissioner
E          of Sales Tax, Lucknow (1993) Supp. 3 SCC 97 : [1993]
           3 SCR 719; S.R. Bommai & Ors. v. Union of India &
           Ors. (1994) 3 SCC 1 : [1994] 2 SCR 644; Raja Ram
           Pal v. Hon’ble Speaker, Lok Sabha & Ors. (2007) 3
           SCC 184 : [2007] 1 SCR 317; Kihoto Hollohan v.
F          Zachillhu & Ors. (1992) Supp. 2 SCC 651 : [1992] 1
           SCR 686; Mohd. Saeed Siddiqui v. State of Uttar
           Pradesh & Anr. (2014) 11 SCC 415; Yogendra Kumar
           Jaiswal & Ors. v. State of Bihar & Ors. (2016) 3 SCC
           183; Mangalore Ganesh Beedi Works v. State of Mysore
           & Anr., [1963] Supp 1 SCR 275; Ramdas Athawale v.
G          Union of India & Ors., (2010) 4 SCC 1 : [2010] 3
            SCR 1059; M.S.M. Sharma v. Dr. Shree Krishna Sinha
           & Ors., AIR 1960 SC 1186; Patna Zilla Truck Owners
           Association & Ors. v. State of Bihar & Ors. AIR 1963
           Pat 16; State of Punjab v. Sat Pal Dang & Ors. [1969]
H          1 SCR 478; A.S. Krishna v. State of Madras, (1957)
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     63


       SCR 399; Union of India & Ors. v. Shah Goverdhan L.              A
       Kabra Teachers’ College, (2002) 8 SCC 228 : [2002] 3
       Suppl. SCR 220; P.N. Krishna Lal & Ors. v. Government
       of Kerala & Anr., (1995) Supp 2 SCC 187 : [1994] 5
       Suppl. SCR 526 – referred to.
       16.3 Section 57 only enables holder of Aadhaar number to         B
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 Authority for establishing the identity    C
of an individual. For all the said reasons, Bill was rightly
introduced as Money Bill. Main provision is a part of Money
Bill and other are only incidental and, therefore, covered by clause
(g) of Article 110 of the Constitution. [Para 412][465-C-D, E]
       17. Section 139AA of the Income Tax Act, 1961                    D
       The Constitution Bench in K. S. Puttaswamy laid down the
triple test which need to be satisfied for judging the permissible
limits for invasion of privacy while testing the validity of any
legislation. In the instant case, there is no dispute that first
requirement stands satisfied as Section 139AA is a statutory            E
provision and, there is backing of law. Insofar as requirement of
‘legitimate State interest’ is concerned, Section 139AA is enacted
to link PAN number with Aadhaar number which is issued under
the Act for the purpose of eliminating duplicate PANs from the
system with the help of robust technology solution. Therefore,
those who have PAN number and have already provided the                 F
information required to get PAN number cannot claim to have
any legitimate expectation of withholding any data required for
Aadhaar under the ground of privacy. Also, there was justifiable
reason with the State for collection and storage of data in the
form of Aadhaar and linking it with PAN insofar as Section 139AA
                                                                        G
of the 1961 Act is concerned. The provisions of Section 139AA
of the Income Tax Act, 1961 meet the triple test of right to privacy,
contained in K.S. Puttaswamy. [Paras 417, 418, 420, 424, 425][467-
F, G; 468-E-F; 477-C-D; 479-D]

                                                                        H
64            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A          18. Prevention of Money Laundering Rules:
          18.1 Challenge to amendment to Rule 9 of the Prevention
     of Money Laundering (Maintenance of Records) Rules, 2005.
            As per Rule 9, linking of Aadhaar with bank account is made
     compulsory not only for opening a new bank account but even for
B    existing bank accounts with a stipulation that if the same is not
     done then the account would be deactivated, with the result that
     the holder of the account would not be entitled to operate the
     bank account till the time seeding of the bank account with
     Aadhaar is done. This amounts to depriving a person of his
C    property. This move of mandatory linking of Aadhaar with bank
     account does not satisfy the test of proportionality. 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
D    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. [Para
     433][487-D-F]
          18.2 The Rules are disproportionate for the following
E    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
F    of KYC which the banks are already undertaking, the state has
     not discharged its burden as to why linking of Aadhaar is
     imperative. [Para 434][487-G-H; 488-A-B]
           Ram Jethmalani & Ors. v. Union of India & Ors. (2011)
           8 SCC 1 : [2011] 8 SCR 725; Lal Babu Hussein v.
G          Electoral Registration Officer and Others (1995) 3 SCC
           100 : [1995] 1 SCR 877 – relied on.
           18.3 There may be legitimate State aim for such a move as
     it aims at prevention of money laundering and black money.
     However, there has not been a serious thinking while making
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     65


such a provision applicable for every bank account. Maintaining         A
back account in today’s world has almost become a necessity.
The Government itself has propagated the advantages thereof
and is encouraging people to open the bank account making it
possible to have one even with Zero Balance under the Pradhan
Mantri Jan Dhan Yojana. The Government has taken various
                                                                        B
measures to give a boost to digital economy. Under these
schemes, millions of persons, who are otherwise poor, are opening
their bank accounts. They are also becoming habitual to the good
practice of entering into transactions through their banks and
even by using digital modes for operation of the bank accounts.
Making the requirement of Aadhaar compulsory for all such and           C
other persons in the name of checking money laundering or black
money is grossly disproportionate. There should have been a
proper study about the methods adopted by persons who indulge
in money laundering, kinds of bank accounts which such persons
maintain and target those bank accounts for the purpose of
                                                                        D
Aadhaar. It has not been done. Thus the amendment to Rule 9,
by the Seventh Amendment Rules, 2017, in the present form, is
held to be unconstitutional. [Paras 435, 436][488-B-F]
      19. Linking of Mobile Number with Aadhaar
       By a Circular dated March 23, 2017, the Department of            E
Telecommunications has directed that all licensees shall reverify
the existing mobile subscribers (pre-paid and post-paid) through
Aadhaar based e-KYC process. In fine, it amounts to mandatory
linking of mobile connections with Aadhaar, which requirement
is not only in respect of those individuals who would be becoming
mobile subscribers, but applies to existing subscribers as well.        F
Not only such a circular lacks backing of a law, it fails to meet the
requirement of proportionality as well. It does not meet ‘necessity
stage’ and ‘balancing stage’ tests to check the primary menace
which is in the mind of the respondent authorities. There can be
other appropriate laws and less intrusive alternatives. For the         G
misuse of such SIM cards by a handful of persons, the entire
population cannot be subjected to intrusion into their private lives.
It also impinges upon the voluntary nature of the Aadhaar
scheme. It is disproportionate and unreasonable state compulsion.
Every individual/resident subscribing to a SIM card does not
                                                                        H
66            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A    enjoy the subsidy benefit or services mentioned in Section 7 of
     the Act. The Circular dated March 23, 2017 is declared as
     unconstitutional. [Paras 437, 442][488-G; 491-D-F]
           Lokniti Foundation v. Union of India & Anr. (2017) 7
           SCC 155 – relied on.
B          M.P. Sharma and 4 Others v. Satish Chandra Distt.
           Magistrate, Delhi and 4 Others [1954] SCR 1077;
           People’s Union for Civil Liberties (PDS matter) v. Union
           of India & Ors. (2011) 14 SCC 331; (2010) 5 SCC
           318; (2010) 13 SCC 45; State of Kerala & Ors. v.
C          President, Parent Teachers Association SNVUP School
           and Ors. (2013) 2 SCC 705 : [2013] 4 SCR 66 –
           referred to.
           Per Ashok Bhushan, J.
           1. Whether requirement under the Aadhaar Act to give
D    one’s biometric and demographic information is violative of
     fundamental right of privacy.
         1.1 Requirement under the Aadhaar Act to give one’s
     demographic information
            1.1.1 The demographic information includes information
E
     relating 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. There is also
     injunction in Section 2(k) that demographic information shall not
     include race, religion, caste, tribe, ethnicity, language, records
F    of entitlement, income or medical history. Thus, demographic
     information which are contemplated to be given in the Act are
     very limited information. The Regulations have been framed
     under Act, namely, Aadhaar (Enrolment and Update) Regulations,
     2016. A perusal of Regulation 4 indicates that information which
     shall be collected from individual are his name, date of birth, gender
G
     and residential address. The additional information which can be
     collected at the option of the individual is mobile number and e-
     mail address. The information contemplated under Regulation 4
     are nothing but information relating to identity of the person.
     [Paras 112, 113, 114][562-D-E; 563-E-F]
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                    67


      1.1.2 Every person born on earth takes birth at a place at       A
a time with a parentage. The identity of person from the time of
taking birth is an identity well known and generally every person
describes himself or herself to be son or daughter of such and
such person. Hence, it can be safely said that there cannot be a
reasonable expectation of privacy with regard to such information.
                                                                       B
An individual in interaction with society 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. In giving of those information there is no reasonable
expectation of privacy. Thus, demographic information required
to be given in the process of enrolment does not violate any right     C
of privacy. The right to identity is an essential component of an
individual in her relationship with the State. Aadhaar is
contemplated as one PAN INDIA identity, which is acceptable
proof of identity in every nook and corner of the country. There
is no expectation of right of privacy with regard to gender. This
                                                                       D
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. With regard to transgenders
also no right of privacy is breached in giving the demographic
information. In so far as biometric information, ample justification
has been found which satisfied the three fold test as laid down in     E
Puttaswamy case, which is equally applicable to transgender also.
[Paras 115, 116, 121, 123, 129][563-G; 564-B-C; 567-F; 568-A-
B; 571-C-D]
      M.P. Sharma & Others v. Satish Chandra & Others 1954
      AIR SC 300 : [1954] SCR 1077; Kharak Singh v. State              F
      of U.P. & Others AIR 1963 SC 1295 : [1964] SCR
      332; National Legal Services Authority and Union of
      India and others (2014) 5 SCC 438 – referred to.
      Alan F. Westin in his work “Privacy and Freedom”;
      Regina (Wood) v. Commissioner of Police of the                   G
      Metropolis (2009) EWCA Civ 414: [2010] 1 WLR 123;
      Katz v. United States 389 US 347 (1967); United States
      v. Antonio Dionisio 35 L.Ed. 2D 67; Otis R. Bowen,
      Secretary of Health and Human Services, et al. v.
      Stephen J. Roy et al., 476 U.S. 693 (1986); Doris
      McElrath v. Joseph A. Califano – referred to.                    H
68            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A         1.2 Whether obtaining biometric information in context of
     enrolment – breaches the right of privacy of individual or not?
            1.2.1 The biometric information as referred to in Section
     2(g) is required to be given in the process of enrolment by a
     person. Biometric information means photographs, fingerprints,
B    iris scan and other such biometric attributes of an individual as
     may be specified by the regulations. Biometric information is of
     physical characteristics of a person. A person has full bodily
     autonomy and any intrusion in the bodily autonomy of a person
     can be readily accepted as breach of his privacy. The biometric
     data as referred to in Section 2(g) may contain biological attributes
C    of an individual with regard to which a person can very well claim
     a reasonable expectation of privacy but whether privacy rights
     have been breached or not needs to be examined in the subject
     context under which the informations were obtained. [Paras 130,
     134][571-E; 574-D-E]
D           1.2.2 The provisions of Aadhaar Act are to be tested in
     light of three-fold test as have been laid in Puttaswamy case. The
     First requirement 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
E    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, subsidies and
     services. Several materials on the record reflect that in the
     several studies initiated by the Government as well as the World
     Bank and Planning Commission, it was revealed that food grains
F    released by the Government for the beneficiaries did not reach
     the intended beneficiaries due to the failure to establish identity.
     The Law, i.e., Aadhaar Act, which has been brought to provide
     for unique identity for delivery of subsidies, benefits or services
     was a dire necessity, which decision was arrived at after several
G    reports and studies. Aadhaar Act was, thus, enacted for a
     legitimate State aim and fulfills the criteria of a law being fair and
     reasonable. As regards the third test, i.e., test of proportionality,
     it has to be kept in mind that the state is neither arbitrary nor of
     an excessive nature beyond what is required in the interest of
     public. The object of the Aadhaar Act was to provide for unique
H    identity for purposes of delivery of benefits, subsidies and services
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      69


to the eligible beneficiaries and to ward of misappropriation of         A
benefits and subsidies, ward of deprivation of eligible beneficiaries.
Biometric information which is to be obtained for enrolment are
not disproportionate nor the provisions of Aadhaar Act requiring
demographic and biometric information can be said to be not
passing three-fold test as laid down in Puttaswamy case. [Paras
                                                                         B
137, 138, 142, 143, 145][575-F-H; 576-E; 578-E-F; 580-B-D; 581-
G-H; 582-A-B]
     2. Collection, storage, retention, use, sharing and
surveillance.
      2.1 Whether collection of data of residents, its storage,          C
retention and use violates fundamental right of privacy?
      2.1.1 The Aadhaar Act provides complete architecture
beginning with enrolment. The enrolment means process to
collect demographic and biometric information from individuals
by enroling agencies. The enroling agencies have to set up               D
enrolment centers and have to function in accordance with the
procedure specified by UIDAI. Section 8 contemplates for
authentication for Aadhaar number which authentication was done
by authority. When a request is made for identification by any
requesting entity in respect to biometric or demographic
information of aadhaar number holder, the authority may engage           E
one or more entities to establish and maintain Central Identity
Data Repository (CIDR). Section 28 provides for the security
and confidentiality of information. Section 29 provides for not
sharing information collected or created under this Act. Section
30 itself contemplates that biometric information are sensitive          F
personal data or information. There are strict conditions
envisaged in Section 33 for disclosure of information. Chapter
VII of the Act deals with the offences and penalties for
impersonation at the time of enrolment penalty for disclosing
identity information is provided under Sections 34 to 37. [Paras
146, 147, 148, 149][582-D-F; 583-G-H; 584-E, F-G]                        G
     2.1.2 Various modes of authentication are provided in
Regulation 4 of Authentication Regulations 2016, which are:
Demographic authentification; One time pin-based authentication;
Biometric-based     authentif ication     and     Multi-factor
                                                                         H
70            SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A    authentification. A requesting entity may choose suitable mode
     of authentication for particular function or business function as
     per its requirement. The Aadhaar (Data Security) Regulations,
     2016 contain detail provisions to ensuring data security.
     Regulation 3 deals with measures for ensuring information
     security. Regulation 5 provides security obligations of the
B
     agencies, consultants, advisors and other service providers
     engaged by the Authority for discharging any function relating to
     its processes. The Aadhaar (Sharing of Information) Regulations,
     2016 also contain provisions providing for restrictions on sharing
     identity information. Sub-Regulation (1) of Regulation 3 provides
C    that core biometric information collected by the Authority under
     the Act shall not be shared with anyone for any reason whatsoever.
     Sharing of Information Regulations, 2016 also contain various
     other restrictions. The scheme of the Aadhaar Act indicates that
     all parts of the entire process beginning from enrolment of a
     resident for allocation of Aadhaar number are statutory regulated.
D
     The Authentication Regulations, 2016 also limit the period for
     retention of logs by requesting entity. [Paras 153, 156-160] [586-
     E; 587-B-E; 588-B-C]
            2.1.3 The residents’ information in CIDR are also permitted
     to be updated as per provisions of the Aadhaar (Enrolment and
E    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 encrypted form. The major function of the
F    authority under Aadhaar Act is authentication of identity of
     Aadhaar number holder as and when requests are made by
     requesting agency, retention of authentication data of requesting
     agencies are retained for limited period. There are ample
     safeguards for security and data privacy in the mechanism. [Para
     161][588-G-H; 589-A]
G           2.1.4 The preponderance of authorities of different
     countries on the subject of retention of data is that retention of
     personal data effecting personal life of an individual may interfere
     in his right of privacy and the State can justify its retention subject
     to proportionality and subject to there being sufficient safeguards
H    to personal information is not retained for longer than is required.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      71


Reverting back to the Aadhaar Act, it is clear that requesting           A
entity as well as authority are required to retain authentication
data for a particular period and thereafter it will be archived for
five years and thereafter authentication data transaction shall be
deleted except such data which is required by the Court in
connection with any pending dispute. The data which is retained
                                                                         B
by the entity and authority for certain period is minimal
information pertaining to identity authentication only no other
personal data is retained. Thus, provisions of Aadhaar Act and
Regulations made thereunder fulfill three fold test as laid down
in Puttaswamy case, hence, the storage and retention of data does
not violate fundamental right of privacy. [Paras 180, 181][595-C-        C
F]
       G. Sundarrajan v. Union of India and Others (2013) 6
       SCC 620 : [2013] 8 SCR 631 – relied on.
       AB v. Her Majesty’s Advocate [2017] UK SC 25;
       Madhewoo v. State of Mauritius – referred to.                     D
       3. Whether Section 7 of Aadhaar Act is unconstitutional?
Whether right to food, shelter etc. envisaged under Article 21
shall take precedence on the right to privacy of the beneficiaries?
       3.1 Article 38 provides that State shall strive to promote
the welfare of the people by securing and protecting as effectively      E
as it may a social order in which justice, social, economic and
political, shall inform all the institutions of the national life. It
further provided that the State shall, in particular, strive to
minimise the inequalities in income, and endeavour to eliminate
inequalities in status, facilities and opportunities, not only amongst
individuals but also amongst groups of people residing in different      F
areas or engaged in different vocations. After enforcement of the
Constitution almost all the Governments worked towards the
object of elimination of poverty and to empower marginal/poor
section of the society. The endeavour of the Government was
always to frame policies keeping in view the “little Indian” who         G
is in the centre of all policies and governance. [Paras 200,
201][604-A-C]
      3.2 Section 7 is an enabling provision which empowers the
State Government to require that such individual undergo
authentication for receipt of a subsidy, benefit or service but
                                                                         H
72            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A    neither Section 7 nor orders issued by the Central Government
     and State Government can be read that in the event authentication
     of a person or beneficiary fails, he is not to be provided the
     subsidies and benefits or services. The provision is couched as
     an enabling provision but it cannot be read as a provision to negate
     giving subsidies, benefits or services in the event of failure of
B
     authentication. Circular dated 24.10.2017 which fills a gap and is
     a direction facilitating delivery of benefits and subsidies does not
     breach by provisions of the Act. [Para 219][611-G-H; 612-A-B]
           Francis Coralie Mullin v. Administrator, Union
           Territory of Delhi and others (1981) 1 SCC 608 : [1981]
C          2 SCR 516 – relied on.
           PUCL v. Union of India (2011) 14 SCC 331; PUCL v.
           Union of India (2013) 14 SCC 368 – referred to.
           Otis R. Bowen, Secretary of Health and Human Services,
D          et al. v. Stephen J. Roy et al., 476 US 693 (1986);
           Buchanan v. Wing 664 N.Y. 2d 865; Doris McElrath v.
           Joseph A. Califano, Jr., Secretary of Health, Education
           and Welfare, 615 F.2d 434 – referred to.
           3.3 No doubt, there has been denial to few persons due to
E    failure of authentication. There is ample material on record to
     indicate that prior to enforcement of Aadhaar Scheme there had
     been large number of denial of benefits and subsidies to real
     beneficiaries due to several reasons. When such scheme of
     Government is implemented, it is not uncommon that there may
     be shortcomings and some denial. There is no material on record
F    to indicate that as compared to non-receipt of eligible beneficiaries
     prior to enforcement of the Act, there 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. The
G    respondents are still ready to take remedial measures to ensure
     that there is no denial of subsidies to deserving persons. [Para
     220][612-C-F]
           State of Uttar Pradesh and Another v. Zila Parishad,
           Ghaziabad and Another (2013) 11 SCC 783; Ex.
           Armymen’s Protection Services P. Ltd. v. Union of India
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                    73


      (UOI) and Ors., (2014) 5 SCC 409 : [2014] 3 SCR 359              A
      – referred to.
      3.4 Whether Aadhaar scheme and its authentication for
benefits, subsidies and services militate against Article 243G and
hence are ultra vires to the Constitution?
       Article 243G is an enabling provision, which enable the State   B
Legislature, by law, to endow the Panchayats with such powers
and authorities as may be necessary to enable them to function
as institutions of self-government. State is fully competent to make
laws to authorise the Panchayats to take over all the matters
enumerated in Eleventh Schedule. The Aadhaar Act is an Act             C
enacted by Parliament, which is referable to Entry 97 of List 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       D
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   E
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. Aadhaar Act is not ultra vires to Article 243G and Eleventh
Schedule to the Constitution. [Paras 230, 231][618-D-G; 620-F-G]
                                                                       F
      4. Whether Section 29 of the Aadhaar Act is liable to be
struck down?
      4.1 The ground to challenge Section 29 is that it permits
sharing of identity information which amount to breach of Right
of Privacy. Section 29 is a provision, which contains restrictions     G
on sharing information as is clear from the heading of the section.
Section 29 sub-section (1) contains prohibition on sharing of any
core biometric information collected or created under this Act.
Sub-section (2) permits sharing of identity information, other than
core biometric information, only in accordance with the provisions
                                                                       H
74            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A    of this Act and in such manner as may be specified by regulations.
     Further sub-section (3) prohibits requesting entity to use identity
     information for any purpose other than that specified to the
     individual or to disclose any information without the consent of
     individual. Sub-section (4) provides that no Aadhaar number or
     core biometric information shall be published, displayed or posted
B
     publicly, except for the purposes as may be specified by
     regulations. The attack on Section 29 that it permits sharing of
     information is thus wholly misconceived. When a person consents
     about sharing of his identity information, he cannot complain
     breach of Privacy Right. When an Act or Regulation regulates
C    and controls sharing of the information, the provision is regulatory
     and has been engrafted to protect individual’s Privacy Right.
     [Paras 234-235][622-B-C; 623-A-E]
           4.2 The provision under Section 29 which permits sharing
     of identity information except core biometric information in
D    accordance with the Act and Regulations cannot be said to be
     disproportionate nor unreasonable. Legislature can very well
     enumerates circumstances and conditions where sharing of
     information becomes necessary. One of the circumstances where
     sharing of the information is specifically engrafted in sub-
     section(2) of Section 33, which provides that nothing contained
E    in sub-section (3) of Section 29 shall apply in respect of any
     disclosure of information, including identity information or
     authentication records, made in the interest of national security
     in pursuance of a direction of an officer not below the rank of
     Joint Secretary to the Government of India. Thus, the
F    circumstances which can contemplate for sharing information is
     reasonable and proportionate. The provisions of Section 29 is
     constitutional and does not deserves to be struck down. [Para
     236][623-G-H; 624-A-B]
           5. Whether Section 33 is constitutional ?
G          5.1 It is not correct to say 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. Sub-section (1) of Section 33 contains an ample restriction
H    in respect of any disclosure information which can be done only
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     75


in pursuance of an order of the court not inferior to that of a         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 passing an
order by the court which amply protects the interest of a person
whose data is to be disclosed. [Paras 238, 239][625-B-D]
                                                                        B
      5.2 Section 33 sub-section (2) contains two safeguards.
Firstly, disclosure of information is to be made in the interest of
national security and secondly, in pursuance of a direction of an
officer not below the rank of Joint Secretary to the Government,
who is specially authorised in this behalf by an order of the Central
Government. National security, thus, has to be determined by a          C
higher officer who is specifically authorised in this behalf. 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 is reasonable and in the
public interest. Section 33 is constitutional. [Paras 240, 245,         D
248][625-F; 628-B-C; 630-A-B]
      State of Bombay v. Kathi Kalu Oghad AIR 1961 SC
      1808 : [1962] SCR 10 – relied on.
      Selvi and others v. State of Karnataka 2010(7) SCC
      263 : [2010] 5 SCR 381 – held inapplicable.                       E

     6. Whether Section 47 of the Aadhaar Act is
unconstitutional?
       Special Acts are enacted for serving special objects towards
offences under the Act. The initiation and prosecution of offences      F
under the Special Act are kept by the specified authority to keep
the initiation and prosecution in the hands of the authorities under
the Special Act which acts as deterrent and prosecutions are
brought to its logical end. The objective of such provisions is to
discourage frivolous and vexatious complaints. Section 47 can
be invoked by the authority on its own motion or when it receives       G
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 the authority who is most entrusted in ensuring that the
provisions of the Act are implemented in accordance with the
Act and offenders should be punished. With regard to an offence
                                                                        H
76            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A    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. The limitation as contained
     in Section 47 in permitting taking cognizance of any offence
     punishable under Aadhaar Act only on a complaint made by the
B
     authority or any officer or person authorised by it, has legislative
     purpose and objective. Thus, there is no unconstitutionality in
     Section 47 of the Aadhaar Act. [Paras 256, 258, 261, 263][635-C-
     D; 636-A-B; 637-B-C; 638-C-D]
           State (NCT of Delhi) v. Sanjay (2014) 9 SCC 772 :
C          [2014] 9 SCR 1063 – relied on.
           Rajkumar Gupta v. Lt.Governor, Delhi and Others,
           (1997) 1 SCC 556 : [1962] SCR 10 – referred to.
           7. Whether Section 57 of Aadhaar Act is unconstitutional?
D          7.1 In the three-fold test evolved in Puttaswamy case,
     proportionality is the third component which ensures that the
     means which are adopted by the legislature are proportional to
     the object and needs sought to be fulfilled by the law.
     Proportionality is an essential facet of the guarantee against
E    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. [Paras 273, 274][643-G; 644-G]
           Modern Dental College and Research Centre and Others
           v. State of Madhya Pradesh and Others (2016) 7 SCC
F          353; Teri Oat Estates (P) Ltd. v. U.T. Chandigarh and
           Others (2004) 2 SCC 130 : [2003] 6 Suppl. SCR 1235;
           State of Madras v. V.G. Row AIR 1952 SC 196 : [1952]
           SCR 597; Om Kumar and Others v. Union of India
           (2001) 2 SCC 386 : [2000] 4 Suppl. SCR 693 – relied
           on.
G
           R v. Oakes (1986) 26 DLR 2001; John Davis v. State
           of Mississippi 394 US 721 (1969); United States v.
           Antoine Jones 132 S.Ct. 945 (2012); S. and Marper v.
           The United Kingdom 2008 (48) EHRR 50; Regina
           (Catt) v. Association of Chief Police Officers of
H          England, Wales and Northern Ireland and another
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                       77


      (2015) 2 WLR 664 – (2015) UKSC 9; United States v.                  A
      Antoine Jones 132 S.Ct. 945 (2012); Roman Zakharov
      v. Russia; Digital Rights Ireland Ltd. v. Minister for
      Communications [2015] QBECJ 127; Tele2 Sverige
      AB v. Post-och telesyrelsen; Vernonia School District v.
      Wayne Acton 515 US 646, 132 L.Ed. 2D 564; Board
                                                                          B
      of Education of Independent School District v. Lindsay
      Earls 536 US 822=153 L.Ed.2d. 735; Michael Schwarz
      v. Stadt Bochum in its judgment dated 17.10.2013 –
      referred to.
       7.2 Whether least intrusive test cannot be applied to judge
the proportionality of Aadhaar Act? There are several reasons             C
due to which 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.             D
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. Section 57 begins with the phrase               E
“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 ideas, which
can be para phrased in following manner:- (a) Nothing contained
in this Act shall prevent the use of Aadhaar number for identifying       F
the identity of an individual for any purpose. (b) Whether by the
State or body corporate or private person. (c) Pursuant to any
law, for the time being in force or any contract to this effect. [Paras
280, 281][647-G-H; 648-A-B, C-E]
      7.3 The basic theme of the Aadhaar Act to implement the             G
Aadhaar programme was for purposes of disbursement of
subsidies, benefits or services to individuals entitled for the same.
By various notifications issued under Section 7, the Government
has made applicable Aadhaar authentication for large number of
schemes namely 133 in number. The idea behind Section 57 is
                                                                          H
78            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A    that Aadhaar is liberated from the four corners of the Act and it
     may not be confined to use under Section 7 alone. The Act does
     not prohibit the use of Aadhaar for any other purpose. The law
     providing for use of Aadhaar for any purpose should be rational
     and proportional. There has to be some object to be achieved by
     use of Aadhaar, in a particular case, the legislature has ample
B
     power to provide for legislative scheme by an enactment making
     use of Aadhaar and use of Aadhaar has to be backed by a valid
     law. In event, it is accepted on the strength of Section 57 that a
     State or body corporate or person, on the basis of any contract to
     this effect, are permitted to use Aadhaar it shall be wholly unguided
C    and uncontrolled, which is prone to violate the right of privacy.
     Section 57 makes use of Aadhaar on two basis. Firstly, “pursuant
     to any law, for the time being in force” and secondly “any contract
     to this effect”. When the legislature uses the phrase “pursuant
     to any law, for the time being in force”, obviously the word law
     used in Section 57 is a law other than Section 57 of Aadhaar Act,
D
     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
E    if one party is a State, cannot be said to be a law. Thus, 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.
     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
F
     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 three-fold test as
     laid down in Puttaswamy case for making provision for use of
     Aadhaar. Section 57, to the extent, which permits use of Aadhaar
G    by the State or any body corporate or person, in pursuant to any
     contract to this effect is unconstitutional and void. Thus, the last
     phrase in main provision of Section 57, i.e. “or any contract to
     this effect” is struck down. [Para 282, 283, 284][648-E-H; 649-
     A-G]
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      79


      8. Whether Section 59 is void or unconstitutional?                 A
      8.1 The expression ‘anything done or any action under
the Resolution’ is wide enough to cover all the actions which
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                B
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                C
dated 28.01.2009. As a result of deeming provision all the actions
under the said scheme shall be deemed to have been done under
the Act and not under the said notification. [Para 287][650-G-H;
651-A-B]
      M/s. West Ramnad Electric Distribution Co. Ltd. v. The             D
      State of Madras and another AIR 1962 SC
      1753 : [1963] SCR 747 – relied on.
        8.2 A statute creates a legal fiction to achieve a legislative
purpose. Legislature has often created legal fiction to save several
actions which had happened prior to enactment. Parliamentary             E
legislative intent of Section 59 is to save all actions taken by
Central Government under the notification dated 28.01.2009 and
notification dated 12.09.2015 deeming the same to have been
validly done under the Aadhaar Act by creating a legal fiction.
The intention to save all actions taken under the aforesaid two          F
notifications and treat them to have done under that Act is clear,
it is the purpose and object of Section 59. Legislature by legislative
device can cover actions taken earlier while creating any legal
fiction which has actually been done by Section 59. [Paras 301,
302, 305][657-D, F-G; 661-D-F]
                                                                         G
      Hari Singh and others v. The Military Estate Officer
      and another (1972) 2 SCC 239 : [1973] 1 SCR 515 –
      followed.
      Bishambhar Nath Kohli and others v. State of Uttar
      Pradesh and others AIR 1966 SC 573 : [1966] SCR
                                                                         H
80           SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A          158; Rajahmundry Electric Supply Corporation Ltd. v.
           State of Andhra Pradesh AIR 1954 SC 251 : [1954]
           SCR 779; Krishna Chandra Gangopadhyaya and
           others v. The Union of India and others (1975) 2 SCC
           302 : [1975] 0 Suppl. SCR 151; ITW Signode India
           Ltd. v. Collector of Central Excise (2004) 3 SCC 48 :
B
           [2003] 5 Suppl. SCR 751; Nar Bahadur Bhandari and
           another v. State of Sikkim and others (1998) 5 SCC 39
           : [1998] 3 SCR 421; The State of Mysore and another
           v. d. Achiah Chetty, Etc. (1969) 1 SCC 248 : [1969] 3
           SCR 55; State of Karnataka v. State of Tamil Nadu and
C          others (2017) 3 SCC 362 : [2016] 8 SCR 499 – relied
           on.
           East End Dwelling Co.Ltd. And Finsury Borough
           Council 1952 AC 109 – referred to.
          9. Whether Collecting the identity information of children
D    between 5 to 18 years is unconstitutional?
           Section 5 of the Act provides that the Authority shall take
     special measures to issue Aadhaar number to women, children,
     senior citizens, persons with disability, unskilled and unorganised
     workers, nomadic tribes or to such other persons who do not
E    have any permanent dwelling house and such other categories of
     individuals as may be specified by regulations. The Aadhaar
     (Enrolment and Update) Regulations, 2016 contains some special
     measures. Regulation 5 provides for information required for
     enrolment of children below five years of age. For children below
F    five, no core biometric informations are captured and only
     biometric information of any one parent/guardian is captured. The
     objection raised by petitioners is with regard to children between
     5 to 18 years on the ground that they being minors, parental
     consent is not taken. For Aadhaar enrolment, for verification of
     information consent is obtained from the person submitting for
G    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
H    consent of their parents or guardian because they themselves
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      81


are unable to give any valid consent for enrolment. Thus, parental       A
consent have to be read 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.
[Paras 307, 308] [662-D-F; 663-D-F]
     10. Whether Rule 9 as amended by the Prevention of                  B
Money-Laundering (Second Amendment) Rules, 2017 is
unconstitutional?
      10.1 The PMLA, 2002 has been enacted to prevent money-
laundering and to provide for confiscation of property derived
from, or involved in, money-laundering and for matters connected         C
therewith or incidental thereto. 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. It is inherent in the           D
activity of money-laundering to keep the entire process secret.
The Parliament with the objectives outlined in the international
declaration enacted the PMLA Act. [Paras 309, 311][664-C; 667-
D-E]
       10.2 A perusal of the Second Amendment Rules, 2017                E
indicates that the State has sought to make the provisions of PMLA
more robust and ensure that the ultimate object of the Act is
achieved. Aadhaar Act, 2016 having been enacted with effect from
01.07.2016, it was decided to get the accounts verified by Aadhaar.
Amended Rules help all concerned to detect fictitious, ghost and         F
benami accounts. The object of the PMLA and the definition of
beneficial owner Act seeks to traverse behind the corporate veil
of shell companies and spurious Directors in order to ascertain
the real natural persons controlling the accounts in the reporting
entities. The Amendment Rules applicable to reporting entities
and the legitimate aim sought to be achieved by the State that is        G
conclusive identification of a natural person or the beneficial owner.
The statutory rules cast an obligation on all account holders to
get their identity verified by Aadhaar mechanism and those who
are already holding account in the reporting entity they are
required to submit the Aadhaar number or proof of their applied          H
82            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A    Aadhaar identity. 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. Aadhaar number is required to be given at the time
B
     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
C    or undue burden on an account holder and is a proportionate
     measure. For non-submission of Aadhaar number and PAN only
     consequence which is contemplated by sub-rule (c) is that account
     shall cease to be operational. The account remains belonging to
     the account holder and the amount in the account is only his
     amount and there is no deprivation of the property of account
D
     holder. Under the banking rules and procedures, there are
     several circumstances where account becomes un-operational.
     A non-operational account also is an account which belongs to
     the account holder and amount laying in the non-operational
     account is neither forfeited by the bank nor taken out from the
E    said account. Further, account is ceased operational only till the
     time Aadhaar number and PAN is submitted. The consequences
     provided is only to effectuate the purpose of the Act and the Rules
     i.e. account be verified by Aadhaar mechanism. It is not the intent
     to deprive the account holder of the amount lying in the account.
     Thus, Rule 9(17)(c) does not violate right under Article 300A.
F
     Aadhaar number providing for verification of an account also
     cannot be held to be violating right under Article 21. The reporting
     entity i.e. banks and financial institutions under various statutes
     are required to provide information of a bank account to different
     authorities including income tax authority, account verification
G    by Aadhaar is not for the purpose of keeping a track on the
     transaction done by an individual. 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. Rules cannot be held in any
     manner violating Sections 3, 7 and 51. The rules provide for use
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      83


of Aadhaar for verification of bank account by law as contemplated       A
by Section 57 of the Aadhaar Act. Rule 9 as amended by PMLA
(Second Amendment) Rules, 2017 is not unconstitutional and does
not violate Articles 14, 19(1)(g), 21 & 300A of the Constitution
and Sections 3, 7 & 51 of the Aadhaar Act. Further Rule 9 as
amended is not ultra vires to PMLA Act, 2002. [Paras 315, 316,
                                                                         B
320, 321, 324][677-D-G; 678-A-C, F-H; 679-A-C; 680-A; 681-
C-D]
      Bank Mellat v. Her Majesty’s Treasury (2013) UKSC 39 –
      referred to.
    11. Circular dated 23.03.2017 issued by Ministry of                  C
Communications, Department of Telecommunications
      11.1 By circular dated 23.03.2017, all licensees were
directed to re-verify all existing mobile subscribers (prepaid and
postpaid) through Aadhaar based e-kyc process. The circular was
addressed by the Ministry of Communications, Department of               D
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. The circular
directing the licensees to mandatorily verify existing sim
subscribers in turn resulted in mobile telephone service licensees       E
directing the subscribers to get their sim seeded with Aadhaar.
Repeated messages and directions have been issued by Cellular
Mobile Telephone Service operators. Compulsory seeding of
Aadhaar with mobile numbers has to be treated to be an intrusion
in Privacy Right of a person. Any invasion on the Privacy Right of       F
a person has to be backed by law as per the three-fold test
enumerated in Puttaswamy case. Existence of a law is the
foremost condition to be fulfilled for restricting any Privacy Right.
[Pars 325, 327, 328][681-E-F; 682-C-D; 683-C-E]
       11.2 The law as explained in Article 13(3) has to be applied      G
for finding out as to what is law. Article 13(3)(a) gives an inclusive
definition of law in following words:- (a) “law” includes any
Ordinance, order, bye-law, rule, regulation, notification, custom
or usage having in the territory of India the force of law. The
circular dated 23.03.2017 at best is only an executive instruction
issued on 23.03.2017 by the Ministry of Communications,                  H
84            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A    Department of Telecommunications. The circular does not refer
     to any statutory provision or statutory base for issuing the circular.
     The recommendations of TRAI are only recommendations and
     the mere fact that circular dated 23.03.2017 was issued after the
     recommendation was sent by TRAI, circular dated 23.03.2017
     does not acquire any statutory character. Circular dated
B
     23.03.2017 thus cannot be held to be a law within the meaning of
     Part III of the Constitution. 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
C    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.
D
     [Paras 329, 330, 337, 342][683-E-G; 687-A-B; 688-F-G]
           Bagalkot Cement Co. Ltd. v. R.K. Pathan and Others
           AIR 1963 SC 439 : [1962] Suppl. SCR 697; Sukhdev
           Singh and Others v. Bhagatram Sardar Singh
           Raghuvanshi and Another (1975) 1 SCC 421 : [1975]
E          3 SCR 619; Lily Kurian v. Sr. Lewina and Others (1979)
           2 SCC 124 : [1979] 1 SCR 820; Alpana V. Mehta v.
           Maharashtra State Board of Secondary Education and
           Another (1984) 4 SCC 27; St. Johns Teachers Training
           Institute v. Regional Director, National Council for
F          Teacher Education and Another (2003) 3 SCC 321 :
           [2003] 1 SCR 975 – held inapplicable.
           Lokniti Foundation v. Union of India and Another
           (2017) 7 SCC 155 – distinguished.
           Union of India and Another v. Association of Unified
G          Telecom Service Providers of India and Others (2011)
           10 SCC 543 : [2011] 14 SCR 657 – referred to
          12. Whether Aadhaar Act is a Money Bill and decision of
     Speaker certifying it as Money Bill is not subject to Judicial
     Review of this Court?
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     85


       12.1 Article 110(3) gives finality to the decision of the        A
Speaker of the House of the People on question as to whether a
Bill is Money Bill or not. The word occurring in sub-article (3) of
Article 110 are “shall be final”. Article 122(1) puts an embargo
on questioning the validity of any proceeding in the Parliament
on the ground of any alleged irregularity or procedure. The
                                                                        B
Constitution uses different expressions in different articles like
“shall be final”, “shall not be questioned”, “shall not be
questioned in any Court of Law” etc. The finality attached to the
decision of the Speaker under Article 110(3) does not inhibit the
Court in exercising its Judicial Review. [Paras 348, 351][691-F-
G; 695-B]                                                               C
       Kihoto Hollohan v. Zachillhu and Others (1992) Supp.
       2 SCC 651 : [1992] 1 SCR 686; Raja Rampal v. Hon’ble
       Speaker, Lok Sabha and Others (2007) 3 SCC 184 :
       [2007] 1 SCR 317 – relied on
       12.2 All Bills are required to be passed by both Houses of       D
Parliament. Exception is given in case of Money Bills and in the
case of joint sitting of both houses. When a Bill does not fulfill
the essential constitutional condition under Article 110(1), the
said requirement will not evaporate only on certification by
Speaker. The decision of Speaker certifying the Bill as Money
Bill is not only a matter of procedure and in event, any illegality     E
has occurred in the decision and the decision is clearly in breach
of the constitutional provisions, the decision is subject to Judicial
Review. [Para 359][704-D-E, F-H]
       Mohd. Saeed Siddiqui v. State of Uttar Pradesh and
       Another (2014) 11 SCC 415; Yogendra Kumar Jaiswal                F
       and Others v. State of Bihar and Others (2016) 3 SCC
       183 – not correct law.
       12.3 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, has been       G
provided by Section 7, i.e. undergoing of an individual to an
authentication. The Preamble of the Act as well as objects and
reasons also indicate that the 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               H
86           SUPREME COURT REPORTS                     [2018] 8 S.C.R.


A    individuals residing in India through assigning of unique identity
     numbers to such individuals and for matters connected therewith
     or incidental thereto. Thus, the provisions of the Act is clearly
     covered by Article 110(1)(c) and (e). [Para 361][705-G-H; 706-
     A-B]
B           Binoy Biswam v. Union of India and others (2017) 7
            SCC 59 : [2017] 7 SCR 1 – relied on.
            13. Whether Section 139-AA of the Income Tax Act, 1961
     is unconstitutional in view of the Privacy judgment in Puttaswamy
     case?
C           13.1 Section 139-AA was clearly enacted to fulfill the
     legitimate State interest. Section 139-A which came into effect
     w.e.f. 01.04.1989 provide for Permanent Account Number (PAN)
     and the provision also provided that statutory mandatory
     provisions as to when “every person” shall quote such number
     (PAN number) for various purposes as enumerated in Section
D    139A. Introduction of Section 139-AA is an extension and
     implication of Section 139A. The new Section 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.
E    Linking of PAN with Aadhaar will 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. Section 139-AA also cannot be
     said to be disproportionate. The section has been enacted to
     achieve the legitimate State aim. The means which are sought
F    to be achieved by such enactment cannot be said to be
     disproportionate in any manner. Section 139-AA is a required
     first step to weed out fake PANs for individuals; it is perfectly
     acceptable for the legislature to weed out fake PANs for other
     tax-paying entities at a later stage.[Paras 373, 374, 375][715-C,
     D-E, F, H; 716-A-B]
G
            Shayara Bano v. Union of India (2017) 9 SCC 1
            : [2017] 7 SCR 797; Namit Sharma v. Union of India
            (2013) 1 SCC 745 : [2013] 13 SCR 1 – relied on.
            13.3 Section 139-AA targets only individual assessees
     and not every other tax-paying entity. The law does not have to
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     87


provide for complete coverage of tax-payers who may be indulging        A
in financial fraud but may envisage ‘degrees of harm’ and act on
that basis. In this context, the Aadhaar number is being mandated
for all individual assessees. This is applicable to natural persons
as well as persons who together constitute legal persons (e.g.
Partners in a partnership, members of a company etc.) and hence
                                                                        B
provides significant coverage to weed out duplicate PANs and
hence reduce the incidence of financial and tax frauds through
these means. Aadhaar’s inclusion into PAN is meant to curb tax
evasion, sham transactions, entry providers which are rampantly
carried out on account of bogus PANs. Aadhaar’s unique de-
duplication based on biometric identification has been hailed as        C
the most sophisticated system by the World Bank. Inclusion of
Aadhaar into PAN eliminates the inequality between honest tax
payers and non-compliant, dishonest ones who get away without
paying taxes. Inclusion of Aadhaar into PAN promotes rather than
negates equality. It bolsters equality and is consistent with Article
                                                                        D
14. In result, Section 139-AA is fully compliant of three-fold test
as laid down in Puttaswamy’s case. Section 139-AA, thus does
not breach fundamental Right of Privacy of an individual and
cannot be struck down on that ground. [Paras 376, 377][716-D-G]
       K.S. Puttaswamy v. Union of India [2017] 10 SCR 569 :
       (2017) 10 SCC 1 – followed.                                      E
       14. Whether Aadhaar Act violates the Interim Orders
passed by this Court in Writ Petition (C) No. 494 of 2012?
       The Aadhaar Act, 2016 gives legislative backing to the
Aadhaar Scheme. The Act contains specific provisions prohibiting
disclosure of core biometric information collected in Aadhaar           F
enrolment. Thus, Aadhaar Act cannot be struck down on the
ground that it is in violation of interim orders passed by this Court
in Writ Petition (C) No. 494 of 2012. [Para 383, 384][719-D-E,
F-G]
       Per Dr. D. Y. Chandrachud, J.                                    G
       1.1 Whether under Article 110(3), the decision of the
Speaker of the Lok Sabha, that a Bill is a Money Bill, is immune
from judicial review.
    1.1.1 Article 109 provides for a special procedure in respect
of Money Bills. It provides that a Money Bill shall not be              H
88            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A    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
B
     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. If the Lok Sabha
C    accepts any of the recommendations of the Rajya Sabha, the
     Money Bill is deemed to have been passed by both Houses of
     the Parliament “with the amendments recommended” by the
     Rajya Sabha and accepted by the Lok Sabha. However, when the
     Lok Sabha “does not accept any of the recommendations” of the
     Rajya Sabha, the Money Bill is said to have been passed by both
D
     Houses in the form in which it was originally passed by the Lok
     Sabha. If a Money Bill after being passed by the Lok Sabha and
     transmitted to the Rajya Sabha for its recommendations is not
     returned to the Lok Sabha within a period of fourteen days, it is
     then deemed to have been passed by both the Houses of the
E    Parliament in the form in which it was originally passed by the
     Lok Sabha. [Para 56]791-E-H; 792-A-B]
            1.1.2 The Rajya Sabha is a constitutional body in a bicameral
     legislature. The makers of the Constitution adopted bicameralism
     from Britain. The draftspersons of the Constitution were
F    conscious of the impact of a misuse of institutional power. Our
     Constitution does not provide absolute power to any institution.
     It sets 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
G    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 from Article 22 of the Irish Constitution which provide a
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     89


mechanism for review of the certificate issued by the Speaker.          A
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 question of whether a Bill is
a Money Bill, to a Committee of Privileges. The members of the
Constituent Assembly did not adopt this mechanism. Absence of
                                                                        B
this mechanism does not mean that the decision of the Speaker
of the Lok Sabha cannot be subject to checks and balances, of
which judicial review is an indispensable facet. The Speaker has
to act within the domain, which the Constitution accords to the
office of the Speaker. Judicial review is the ultimate remedy to
ensure that the Speaker does not act beyond constitutional              C
entrustment. [Paras 60, 71][793-G-H; 805-B-F]
      Justice K S Puttaswamy (Retd) v. Union of India [2017]
      10 SCR 569 : (2017) 10 SCC 1 – followed.
      Shayara Bano v. Union of India (2017) 9 SCC 1 :
      [2017] 7 SCR 797; Kalpana Mehta v. Union of India                 D
      (2018) 7 SCC 1; N P Ponnuswami v. Returning Officer,
      Namakkal Constituency, Namakkal, Salem District
      [1952] SCR 218; Union of India v. Jyoti Prakash Mitter
      (1971) 1 SCC 396 : [1971] 3 SCR 483; Union of India
      v. Tulsiram Patel (1985) 3 SCC 398 : [1985] 2 Suppl.              E
       SCR 131; Kihoto Hollohan v. Zachillhu (1992) Supp
      2 SCC 651 : [1992] 1 SCR 686 – relied on
       1.1.3 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.           F
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           G
federal features of the Constitution are not transgressed. [Para
94][830-D-F]
      Special Reference No. 1 of 1964 AIR 1965 SC 745 :
      [1965] SCR 413; Ramdas Athawale v Union of India
      (2010) 4 SCC 1 : [2010] 3 SCR 1059; Raja Ram Pal v                H
90             SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A            Hon’ble Speaker, Lok Sabha (2007) 3 SCC 184 : [2007]
             1 SCR 1; Mangalore Ganesh Beedi Works v State of
             Mysore [1963] Supp 1 SCR 275; Pandit MSM Sharma
             v Dr Shree Krishna Sinha AIR 1960 SC 1186 – relied
             on.
B            Mohd Saeed Siddiqui v State of Uttar Pradesh (2014)
             11 SCC 415; Yogendra Kumar Jaiswal v State of Bihar
             (2016) 3 SCC 183 – overruled.
             Fathali M. Moghaddam, The SAGE Encyclopaedia of
             Political Behaviour (2017); Sidharth Chauhan,
             Bicameralism: comparative insights and lessons,
C            Seminar (February, 2013); Rajya Sabha Secretariat,
             Second Chamber In Indian Parliament: Role and
             Status of Rajya Sabha, (2009), at page 2; M.N. Kaul
             and S.L. Shakdher, Practice and Procedure of
             Parliament, Lok Sabha Secretariat (2001); H M
D            Seervai, Constitutional Law of India, Universal Law
             Co. Pvt. Ltd, Vol. 1, (1991); Rajya Sabha Secretariat,
             Structure and Functions of Rajya Sabha Secretariat,
             (2009), at pages 2-3; Gary Roethenbaugh, (cited in A.
             Cavoukian, Privacy and Biometrics, Information and
             Privacy Commissioner, Ontario, Canada, 1999, page
E            11; Els J. Kindt, Privacy and Data Protection Issues
             of Biometric Applications: A Comparative Legal
             Analysis, Springer (2013) – referred to.
             1.2 Whether the Aadhaar Act was validly passed as a Money
     Bill.
F            1.2.1 Article 110(1) of the Constitution defines a Money
     Bill. For a Bill to be a Money Bill, it must contain “only
     provisions” dealing with every or any one of the matters set out
     in sub-clauses (a) to (g) of clause 1 of Article 110. The expression
     “if it contains only provisions dealing with all or any of the following
G    matters, namely...” is crucial. Firstly, the expression “if” indicates
     a condition and it is only upon the condition being fulfilled that
     the deeming fiction of a Bill being a Money Bill for the purposes
     of the Chapter will arise. Secondly, to be a Money Bill, the Bill
     should have only those provisions which are referable to clauses
     (a) to (g). The condition is much more stringent than stipulating
H    that the Bill should incorporate any of the matters spelt out in
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                       91


clauses (a) to (g). The words “only provisions” means that besides        A
the matters in sub clauses (a) to (g), the Bill shall not include
anything else. Otherwise, the expression “only” will have no
meaning. The word “only” cannot be treated to be otiose or
redundant. Thirdly, the two expressions “if it contains only
provisions” and “namely” indicate that sub-clauses (a) to (g) are
                                                                          B
exhaustive of what a Money Bill may contain. The contents of a
Money Bill have to be confined to all or any of the matters
specified in sub-clauses (a) to (g). Fourthly, sub-clause (g) covers
any matter incidental to sub-clauses (a) to (f). A matter is incidental
when it is ancillary to what is already specified. Sub-clause (g) is
not a residuary entry which covers all other matters other than           C
those specified in sub-clauses (a) to (f). If sub-clause (g) were
read as a catch-all residuary provision, it would defeat the purpose
of defining a class of Bills as Money Bills. What is incidental
under sub-clause (g) is that which is ancillary to a matter which is
already specified in sub-clauses (a) to (f). The test is not whether
                                                                          D
it is incidental to the content of a Bill but whether it is incidental
to any of the matters specifically enumerated in sub-clauses (a)
to (f). 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               E
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
                                                                          F
contains “only provisions” dealing with all or any of the matters
listed under sub-clauses (a) to (g) of Article 110(1). If a Bill
contains provisions which fall outside sub-clauses (a) to (g), it is
not a Money Bill. The entirety of the Bill cannot be regarded as
a Money Bill, once it contains any matters which fall beyond sub-
clauses (a) to (g). Once that is the position, it could be impossible     G
to sever those parts which fall within sub-clauses (a) to (g) and
those that lie outside. [Paras 95, 98][831-A-F, G-H; 832-A-B;
834-B-C]
        Hari Ram v. Baby Gokul Prasad, (1991) Supp 2 SCC
        608; M/s Saru Smelting (P) Ltd. v. Commissioner of
                                                                          H
92            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A          Sales Tax, Lucknow (1993) Supp 3 SCC 97 : [1993] 3
           SCR 719; SR Bommai v Union of India AIR 1994 SC
           1998 – relied on.
            1.2.2 The Lok Sabha cannot introduce and pass a legislative
     measure in the garb of a Money Bill, which could otherwise have
B    been amended or rejected by the Rajya Sabha. Introduction and
     passing of a Bill as a Money Bill, which does not qualify to be a
     Money Bill under Article 110(1) of the Constitution, is plainly
     unconstitutional. The Lok Sabha is not entrusted with the entire
     authority of Parliament. The Lok Sabha, the Rajya Sabha and the
     President together constitute the Parliament of India. The Lok
C    Sabha is a body of elected representatives and represents the
     aspirations of citizens. Yet, like every constitutional institution,
     it is part of this basic structure of the Constitution. A political
     party or a coalition which holds the majority in the Lok Sabha
     cannot subvert the working of the Constitution. [Para 99][835-
D    C-E]
            1.3. The Speaker of the Lok Sabha has an onerous
     constitutional duty to ensure that a Bill, which is not a Money
     Bill is not passed as a Money Bill. The Speaker of the Lok Sabha,
     the Chairman of the Rajya Sabha, the members of the Lok Sabha
E    and the Rajya Sabha, and the President need to work in
     constitutional solidarity to ensure that no provision of the
     Constitution is diluted or subverted. The Aadhaar Act was passed
     as a Money Bill. The 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
F    submitting demographic and biometric information and
     undergoing the process of enrolment and authentication. The Act
     indicates that the Aadhaar number may be accepted as proof of
     identity for any purpose. It creates a central database (CIDR) for
     storage of identity information collected from individuals. The
G    primary object of the legislation is to create one national identity
     for every resident. It seeks to do so by legislating a process for
     collecting demographic and biometric information. The Act has
     created an authority to oversee the fulfilment of its provisions.
     In its primary focus and initiatives, the law traverses beyond the
     territory reserved by Article 110 for a Money Bill. Aadhaar
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     93


numbers may be used for “other purposes”. [Paras 100, 101,              A
107][835-G; 836-A-B; 839-D-G; 840-B]
      1.4 The Preamble to the Aadhaar Act indicates that the main
objective was to achieve an efficient and “targeted delivery of
subsidies, benefits and services, the expenditure for which is
incurred from the Consolidated Fund of India”. The substantive          B
provisions of the Act are, however, not confined to the object
specified in the Preamble. Indeed, they travel far beyond the
boundaries of a money bill under Article 110(1). The enrolment
on the basis of demographic and biometric information,
generation of Aadhaar number, obtaining consent of individuals
before collecting their individual information, creation of a           C
statutory authority to implement and supervise the process,
protection of information collected during the process, disclosure
of information in certain circumstances, creation of offences and
penalties for disclosure or loss of information, and the use of the
Aadhaar number for any purpose lie outside the ambit of Article         D
110. These themes are also not incidental to any of the matters
covered by sub-clauses (a) to (f) of Article 110(1). [Para 108][840-
H; 841-A-B]
       1.5 Under clause (e) of Article 110(1), the money bill must
deal with the declaring of any expenditure to be expenditure            E
charged on the Consolidated Fund of India (or increasing the
amount of expenditure). Section 7 does not declare the
expenditure incurred on services, benefits or subsidies to be a
charge on the Consolidated Fund of India. What Section 7 does
is to enact a provision allowing for Aadhaar to be made mandatory,
in the case of services, benefits or subsidies which are charged        F
to the Consolidated Fund. Section 7 provides that in the case of
services, benefits or subsidies which are already charged to the
Consolidated Fund, Aadhaar can be made mandatory to avail of
them. 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             G
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). 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
                                                                        H
94            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A    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 provision (Section 7)
B
     which is relatable to sub-clause (e) of Article 110(1), the other
     provisions of the Act are unrelated to Article 110(1). [Para
     109][841-D-E; 842-A-B]
            1.6 The doctrine of pith and substance is mainly used to
     examine whether the legislature has the competence to enact a
C    law with regard to any of the three Lists provided under the
     Constitution. It cannot be applied to sustain as a Money Bill, a
     Bill which travels beyond the constitutional boundaries set out
     by Article 110. Whether a Bill is validly passed as a Money Bill
     has nothing to do with the legislative competence of the
D    legislature under Article 246 of the Constitution.[Para 115][848-
     F-G]
           A S Krishna v. State of Madras [1957] SCR 399; State
           of Maharashtra v. Bharat Shanti Lal Shah (2008) 13
           SCC 5 : [2008] 12 SCR 1083 – relied on
E          Union of India v. Shah Goverdhan L Kabra Teachers’
           College (2002) 8 SCC 228 : [2002] 3 Suppl. SCR 220
           – held inapplicable.
            1.7 Introducing the Aadhaar Act as a Money Bill has
     bypassed the constitutional authority of the Rajya Sabha. It
F    deprived the Rajya Sabha from altering the provisions of the Bill
     by carrying out amendments. 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
     legitimacy of democratic institutions. It constitutes a fraud on
G    the Constitution. Passing of a Bill as a Money Bill, when it does
     not qualify for it, damages the delicate balance of bicameralism
     which is a part of the basic structure of the Constitution.
     Institutions are crucial to democracy. The Act thus fails to qualify
     as a Money Bill under Article 110 of the Constitution. The Aadhaar
     Act is in violation of Article 110 and, therefore, is liable to be
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     95


declared unconstitutional. [Paras 116, 117] [850-F-G; 851-              A
B-C, E-F]
      2. Biometrics, Privacy and Aadhaar
      2.1.1 Biometric technologies imply that “unique or
distinctive human characteristics of a person are collected,
measured and stored for the automated verification of a claim           B
made by that person for the identification of that person.” These
systems thus identify or verify the identity or a claim of persons
on the basis of the automated measurement and analysis of their
biological traits (such as fingerprints, face and iris) or behavioral
characteristics (such as signature and voice). The adoption of          C
biometric technologies in developing countries in particular poses
unique challenges since the implementation of new technologies
in these countries is rarely preceded by the enactment of robust
legal frameworks. The lack of regulatory frameworks, or the
inadequacy of existing frameworks, has societal and ethical
consequences and poses a constant risk that the concepts of             D
privacy, liberty and other fundamental freedoms will be
misunderstood, eroded or devalued. 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. The Aadhaar Act              E
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 individual concerned.
[Paras 118, 121, 122, 124][852-B; 854-D-E; 855-B, D-E]
                                                                        F
      2.1.2 There are two main groups of privacy- related
interests that are directly pertinent to the contemporary
discussion on the ethical and legal implications of biometrics.
The first group falls under ‘informational privacy’ and is concerned
with control of personal information. The ability to control
personal information about oneself is closely related to the dignity    G
of the individual, self-respect and sense of personhood. The
second interest group falls under the rubric of ‘physical privacy’.
This sense of privacy transcends the purely physical and is aimed
essentially at protecting the dignity of the human person. It is a
safeguard against intrusions into persons’ physical bodies and          H
96            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A    spaces. Another issue is of property rights with respect to privacy,
     which concerns the appropriation and ownership of interests in
     human personality. In many jurisdictions, the basis of informational
     privacy is the notion that all information about an individual is in
     some fundamental way their own property, and it is theirs to
     communicate or retain as they deem fit. [Para 125][855-F-G;
B
     856-A-C]
           2.1.3 The collection of most forms of biometric data
     requires some infringement of the data subject’s personal space.
     Iris and fingerprint scanners require close proximity of biometric
     sensors to body parts such as eyes, hands and fingertips. Even in
C    the context of law enforcement and forensic identification, the
     use of fingerprinting is acknowledged to jeopardise physical
     privacy. Many countries have laws and regulations which are
     intended to regulate such measures, in order to protect the
     individual’s rights against infringement by state powers and law
D    enforcement. However, biometrics for the purpose of
     authentication and identification is different as they do not have a
     specific goal of finding traces related to a crime but are instead
     conducted for the purpose of generating identity information
     specific to an individual. This difference in purpose actually
     renders the collection of physical biometrics a more serious
E    breach of integrity and privacy. 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
F    people of specific cultural or religious backgrounds, even the
     mental harm resulting from physical intrusion maybe quite
     serious. [Para 126, 127][856-C-E, G]
           Nancy Yue Liu, Bio-Privacy: Privacy Regulations and
           the Challenge of Biometrics, Routledge (2013); Simon
G          Davies, as cited in John D. Woodward, Biometric
           Scanning, Law & Policy: Identifying the Concerns -
           Drafting the Biometric Blueprint, University of
           Pittsburgh Law Review, (1997); Daniel M. L
           Storisteanu, Toby L. Norman, Alexandra Grigore and
           Alain B. Labrique, Can biometrics beat the developing
H          world’s challenges?, Biometric Technology Today
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                   97


      (2016); Pam Dixon, A Failure to Do No Harm - India’s            A
      Aadhaar biometric ID program and its inability to
      protect privacy in relation to measures in Europe and
      the U.S., Health and Technology (2017), Vol. 7, at
      pages 539–567 – referred to.
     2.2 Consent in the collection of biometric data: Privacy         B
Concerns in the Aadhaar Act
      The right of an individual to access information related to
his or her authentication record is recognized in Section 3(2)(c)
and Section 32(2) of the Aadhaar Act. However, the
supplementary regulations that complement the Act are bereft          C
of detail on the procedure to access such information. Although
Regulation 5 mentions that at the time of authentication,
requesting entities shall inform the Aadhaar number holder of
alternatives to submission of identity information for the purpose
of authentication, and Regulation 6 mandates that the requesting
entity shall obtain the consent of the Aadhaar number holder for      D
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        E
does not provide consent. This is a significant omission. [Paras
145, 146][871-C, E-F]
      Identification for Development (World Bank Group),
      Technical Standards for Digital Identity Systems for
      Digital Identity Draft for Discussion, available at             F
      Technical-Standards-for-Digital-Identity.pdf, at page
      22; Katie Bird, Is your biometric data safe online?
      ISO/IEC standard ensures security and privacy, (11
      August 2011) – referred to.
      2.3 Extent of information disclosed during authentication       G
& sharing of core biometric information: Section 29(1) of the
Aadhaar Act expressly states that ‘core biometric information
can never be shared with anyone for any reason whatsoever or
be used for any purpose other than generation of Aadhaar numbers
and authentication under this Act’. However, this provision is
contradicted by Section 29(4) of the Act, the proviso to which        H
98            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A    grants UIDAI the power to publish, display or post core biometric
     information of an individual for purposes specified by the
     regulations. 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
B
     as provided to core biometric information. [Paras 145, 148][872-
     G-H; 873-C-E; 874-A]
            2.4 Other concerns regarding the Aadhaar Act:
     Misconceptions regarding the efficacy of biometric information:
     Sections 6 and 31(2) of the Aadhaar Act place an additional onus
C    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. An individual’s
     biometric information may change from time to time. Natural
     factors like ageing, manual labour, injury and illness can cause an
D    individual’s biometric information to be altered over the course
     of a lifetime. [Paras 150-151][874-F; 875-C-D]
           Ramesh Subramanian, Computer Security, Privacy &
           Politics: Current Issues, Challenges & Solutions,
           IRM Press, at pages 99-100; L. Vishwanath, Four
E          Reasons You Should Worry About Aadhaar’s Use of
           Biometrics, The Wire (28 March, 2017); A.
           Cavoukian, Privacy and Biometrics, Information and
           Privacy Commissioner Canada (1999); Robert
           Gellman, Privacy and Biometric ID Systems: An
           Approach Using Fair Information Practices for
F          Developing Countries, CGD Policy Paper 028
           Washington DC: Centre for Global Development (1
           August 2013) – referred to.
           2.5 No access to biometric records in database: The
     proviso to Section 28(5) of the Aadhaar Act disallows an individual
G    access to the biometric information that forms the core of his or
     her unique ID (Aadhaar). Denial of access to the individual violates
     a fundamental principle of data protection: ownership of the data
     must at all times vest with the individual. Overlooking this
     fundamental principle is manifestly arbitrary and violative of
H    Article 14. [Para 152][876-F-G; 877-C]
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                     99


       2.6 Biometric locking: Authentication Regulations 11 (1)         A
and (4) provide for the facility of Biometric Locking. The
provision allowing biometric locking is salutary to the extent that
it allows Aadhaar number holders to permanently lock their
biometrics and temporarily unlock them only when needed for
biometric authentication. But the regulation is problematic to the
                                                                        B
extent that it also empowers the UIDAI to make provisions to
remove such locking without any specified grounds for doing so.
[Para 153][877-C-D, E-F]
      2.7 Key takeaways: 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.   C
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      D
form, the Aadhaar framework does not address the privacy
concerns issues. [Para 157][879-F-G]
      John D Woodward, Biometrics: Identifying Law &
      Policy Concerns, in Biometrics (AK Jain A.K, R Bolle,
      and S Pankanti eds.), Springer (1996); Robert Gellman,            E
      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);
      Pam Dixon, A Failure to Do No Harm – India’s Aadhaar
      biometric ID program and its inability to protect                 F
      privacy in relation to measures in Europe and the U.S.,
      Health and Technology, Vol. 7 (2017), at pages 539–
      567 – referred to.
      3.   Legitimate state aim
                                                                        G
      3.1 Directive Principles: The essence of the Directive
Principles lies in Article 38 of the Constitution, which places an
obligation on the State to secure a social order for the promotion
of the welfare of the people. Article 41 speaks of the right to
work, to education, and to public assistance. Article 43
contemplates a living wage and conditions of work which provide         H
100            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A     a decent standard of life. 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.
      [Paras 158, 161][880-A; 881-F-G; 882-F-G; 883-A, C]
             3.2 Development and freedom: Social security acts as an
B     underpinning link with development. There is also a two-way
      relationship between development and social security (expansion
      of human capability). 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 providing subsidies and benefits to the common citizens, must
C     be accompanied by accountability and transparency. These
      concerns form the basis of the Aadhaar Act, 2016. 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
D     targeted beneficiaries”. The Aadhaar platform is not a social
      welfare benefit in itself. Essentially, what it seeks to achieve is
      to provide a unique identity to every resident. This identity, in
      the form of an Aadhaar number, is obtained upon the submission
      of demographic and biometric information in the course of
      enrolment. The legislative design envisages that the identity of
E     the individual is verified through the process of authentication
      by which the biometric data stored in the central repository is
      matched with the biometric information submitted for
      authentication. As an instrument for verifying identity, Aadhaar
      seeks to ensure that social welfare benefits are obtained by
F     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. There is a state interest in ensuring that the
      welfare benefits which the state provides reach those for whom
      they are intended. [Paras 164, 174, 175, 177, 178][885-F; 894-F-
G     G; 895-E; 897-G; 898-C-D; 899-B-C, E, G]
            Minerva Mills Ltd. v. Union of India (1980) 3 SCC
            625 : [1981] 1 SCR 206 – relied on.
            Arun K Thiruvengadam, The Constitution of India: A
H           Contextual Analysis, (Bloomsbury 2017), at page 1;
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      101


      George H Gadbois, JR, Supreme Court of India: The                  A
      Beginnings (Vikram Raghavan and Vasujith Ram
      eds.), Oxford University Press (2017), at page 193;
      “A known but an indifferent judge”: Situating Ronald
      Dworkin in contemporary Indian jurisprudence,
      International Journal of Constitutional Law, (2003)
                                                                         B
      at page 582 by Upendra Baxi; Development as
      Freedom, Oxford University Press (2000), at page
      xii by Amartya Sen; Two Concepts of Liberty by Isaiah
      Berlin; The Constitution of Liberty, Routledge & Kegan
      Paul, (1960) at pages 11, 207-208 by F A Hayek;
      Women and Human Development, Cambridge                             C
      University Press, (2000) by Martha Nussbaum; Basic
      Rights: Subsistence, Affluence and US Foreign Policy,
      Princeton University Press, Second Edition (1996) by
      Henry Shue; The Idea of Justice, Penguin (2009) at
      pages 379-380 by Amartya Sen; An Uncertain Glory,
                                                                         D
      Penguin (2013), at pages x and xi by Jean Dreze and
      Amartya Sen – referred to.
       3.3 Identity and Identification: Identity is inseparable from
the human personality. An identity is a statement of who an
individual is. The human personality is, at a certain level, all about
identity, for it is through the assertion of identity that each          E
individual seeks to preserve the core of his or her humanity. An
identity is the persona which an individual puts forth in a multitude
of relationships. When the Constitution protects our right to be
and to be what we are, it creates a space where the individual is
immune from interference. By recognizing our liberty as                  F
autonomous persons, the Constitution recognizes our ability to
preserve and shape our identities in interactions with others.
There is a distinction between identity and identification.
Identification is a matter of proof of establishing that a person is
actually, the individual who claims a right or entitlement. In their
daily interactions, individuals have to distinguish themselves from      G
others, whether it be in the course of employment, travel, civil
union, location, community perspectives, revenue obligations or
access to benefits. Identification is a proof of identity or evidence
of identity. Identification is mandatory in numerous activities of
day to day life: a passport is necessary for international travel, a     H
102            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A     voter ID is required for exercising electoral rights, a driving
      license is necessary to ply a vehicle and an arms license is needed
      to possess a fire arm. [Paras 179, 180][899-G-H; 900-A-B, E-F]
             3.4 There are two important facets of the Aadhaar regime.
      The first is that under Section 3, it is a voluntary option of the
B     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
C     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 Consolidated Fund of
      India can only be appropriated in accordance with law, for the
D     purpose of and in the manner provided by the Constitution. The
      State is a trustee of public resources. The adoption of Aadhaar is
      in fulfilment of the doctrine of public trust. The state is under a
      bounden obligation to ensure that its revenues which are placed
      in the Consolidated Fund are appropriated in accordance with
      law and are not diverted for extraneous purposes. The mandate
E     of Section 7 is founded on a legitimate state interest. The state
      has a vital interest in ensuring that public revenues are duly
      accounted, that the Consolidated Fund is utilized for purposes
      authorized by law; that funds for development reach genuine
      beneficiaries and that scarce public resources meant for those at
F     the foot of the socio-economic ladder are not mis-utilized by rent-
      seeking behavior. [Para 187][907-C-E, G-H; 908-A]
            National Legal Services Authority v. Union of India
            (2014) 5 SCC 438; Natural Resources Allocation, In
            Re, Special Reference No.1 of 2012 (2012) 10 SCC 1 :
G           [2012] 9 SCR 311; Centre for Public Interest Litigation
            v. Union of India (2012) 3 SCC 1 : [2012] 3 SCR 147;
            Reliance Telecom Limited v. Union of India (2017) 4
            SCC 269 : [2017] 4 SCR 972 – relied on.
            Opinion on the Right to Identity, 2007; Identity and
H           Identification – the Individual in the Time of
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                    103


      Networked Governance, Socio Legal Review by                      A
      Nishant Shah; Conversation with Manuel Castells,
      Globetrotter by Manuel Castells – referred to.
      4. Proportionality
      4.1 Harmonising conflicting rights – It is the foremost duty
of the State to work towards achieving and maintaining a fine          B
balance, taking into account these myriad considerations. The
State must always be guided by the knowledge and sense of duty
that in a true democracy, the citizens cannot be made to choose
between rights and needs, as they are equally entitled to both.
As the sentinel of justice and protector of fundamental rights, it     C
is the responsibility of this Court to act as a check and ensure
that government action or inaction does not endanger or threaten
to disturb the balance that the Constitution seeks to achieve.
[Para 190][911-B-C]
      4.2 While exercising judicial review, courts are often           D
confronted with situations involving conflicts between rights,
tensions between individuals arising from the assertion of rights
and discord arising out of the assertion of the same right by two
or more individuals. Conflicts between rights arise when the
assertion of a fundamental human right by an individual impacts
upon the exercise of distinct freedoms by others. The freedom          E
of one individual to speak and to express may affect the dignity
of another. A person may be aggrieved 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.
[Para 191][911-D-E]                                                    F
      4.3 In seeking to draw the balance between political
freedoms and economic freedoms, the Court must preserve the
euphony between fundamental rights and directive principles. It
is on their co-existence that the edifice of the Constitution is
founded. Neither can exist without the other. Democracy rejects        G
the totalitarian option of recognising economic entitlements
without political liberty. Economic rights have become justiciable
because of the constitutional 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.
                                                                       H
104            SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A     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
B
      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. The test of proportionality
      stipulates that the nature and extent of the State’s interference
      with the exercise of a right (in this case, the rights to privacy,
C     dignity, choice, and access to basic entitlements) must be
      proportionate to the goal it seeks to achieve (in this case,
      purported plugging of welfare leakage and better targeting). 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
D
      is inappropriate. [Paras 196, 198][915-G-H; 916-A-C; 917-B, E]
            People’s Union for Civil Liberties (PUCL) v Union of
            India (2003) 4 SCC 399 : [2003] 2 SCR 1136;
            Thalappalam Service Cooperative Bank Limited v State
            of Kerala (2013) 16 SCC 82 : [2013] 14 SCR 475;
E           G Sundarrajan v Union of India (2013) 6 SCC 620 :
            [2013] 8 SCR 631; Subramanian Swamy v Union of
            India (2016) 7 SCC 221 : [2016] 3 SCR 865; Asha
            Ranjan v Chandrakeshwar Prasad (2017) 4 SCC 397;
            Chintaman Rao v State of Madhya Pradesh [1950] SCR
F           759; State of Madras v V G Row [1952] SCR 597 –
            relied on.
            Granville Austin, Working a Democratic Constitution:
            A History of the Indian Experience, Oxford University
            Press (2003) at page 6; Lon L. Fuller and Kenneth I.
G           Winston, The Forms and Limits of Adjudication,
            Harvard Law Review, Vol. 92, (1978), at pages 353-
            409; Kwame Anthony Appiah, The Lies That Bind:
            Rethinking Identity, Liveright Publishing (2018); Francis
            Fukuyama, Identity: The Demand for Dignity and the
            Politics of Enlightenment, Farrar, Straus and Giroux
H           (2018); Anand Giridharadas ‘What is Identity?’, The
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                    105


      New York Times, 27 August, 2018; Peter F Drucker,                A
      The Age of Discontinuity: Guidelines to Our Changing
      Society, Harper & Row (1969). Drucker’s book
      popularized the term ‘Knowledge Economy’; What
      is Knowledge Economy?’, IGI Global: Disseminator
      of Knowledge; Krishnadas Rajagopal, ‘Aadhaar in
                                                                       B
      numbers: key figures from UIDAI CEO’s
      presentation to the Supreme Court’, The Hindu,
      (March 22, 2018). Aadhaar enrollment as of March
      2018 stood at over 1 billion; Upendra Baxi, The Right
      To Be Human: Some Heresies, India International
      Centre Quarterly, Vol. 13, (1986); Thomas Erskine                C
      May, A treatise on the law, privileges, proceedings
      and usage of Parliament, Ninth Edition (1883); B Shiva
      Rao, The Framing of India’s Constitution: A Study,
      Indian Institution of Public Administration (1968), at
      page 420; Pratik Datta, Shefali Malhotra & Shivangi
                                                                       D
      Tyagi, Judicial Review and Money Bills, NUJS Law
      Review (2017); Granville Austin, The Indian
      Constitution: Cornerstone of a Nation, Oxford
      University Press (1966) – referred to.
       4.4 Proportionality standard in Indian jurisprudence:
Proportionality has been the core of reasonableness since the          E
1950s. In Puttaswamy, (Chandrachud J.), speaking for four judges,
laid down the tests that would need to be satisfied under our
Constitution for violations of privacy to be justified. The third
principle adopts the test of proportionality to ensure a rational
nexus between the objects and the means adopted to achieve             F
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        G
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. The ‘test of
proportionality’ is a judicially-entrenched principle which has
invigorated fundamental rights jurisprudence in the country. The       H
106            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A     application of the proportionality standard in rights-based
      adjudication is well-recognised across diverse jurisdictions. [Paras
      199, 204][917-F; 918-C-D; 922-B-C, E-G; 923-B-C]
            State of Bihar v. Kamla Kant Misra (1969) 3 SCC 337
            : [1970] 3 SCR 181; Mohammed Faruk v. State of
            Madhya Pradesh (1969) 1 SCC 853 : [1970] 1 SCR
B
            156; Bishambhar Dayal Chandra Mohan v. State of
            Uttar Pradesh (1982) 1 SCC 39 : [1982] 1 SCR 1137;
            Om Kumar v. Union of India (2001) 2 SCC 386 : [2000]
            4 Suppl. SCR 693; Teri Oat Estates v. U.T., Chandigarh
            (2004) 2 SCC 130 : [2003] 6 Suppl. SCR 1235; Modern
C           Dental College and Research Centre v. State of Madhya
            Pradesh (2016) 7 SCC 353 – relied on.
            Elloy de Freitas v. Permanent Secretary of Ministry of
            Agriculture, Fisheries, Lands and Housing, [1999] 1
            AC 69; Huang (FC) v. Secretary of State for the Home
D           Department [2007] UKHL 11 – referred to.
            All things in Proportion? American Rights Review
            and the Problem of Balancing, Emory Law Journal,
            Vol. 60 (2011) by Jud Mathews and Alec Stone Sweet;
            Proportionality Balancing             and       Global
            Constitutionalism, Columbia Journal of Transnational
E           Law, Vol. 47 (2008) by Alec Stone Sweet & Jud
            Mathews; Proportionality and the Culture of
            Justification, American Journal of Comparative Law
            Vol. 59 (2011) (cited in); Etienne Mureinik, A Bridge
            to Where? Introducing the Interim Bill of Rights,
F           South African Journal on Human Rights, Vol. 10 (1994)
            by Moshe Cohen-Eliya and Iddo Porat; The Principle
            of Proportionality, University of Michigan Journal of
            Law Reform, Vol. 42 (2009) Andrew B. Serwin, Privacy
            3.0 – The Principle of Proportionality, University of
            Michigan Journal of Law Reform, Vol. 42 (2009) by
G           Andrew B. Serwin, Privacy 3.0; Adalah v. The
            Minister of Interior, HCJ 7052/03; Jean Dreze and
            Amartya Sen, An Uncertain Glory, Penguin (2013), at
            pages x and xi; Gary Roethenbaugh, (cited in A.
            Cavoukian, Privacy and Biometrics, Information and
H           Privacy Commissioner, Ontario, Canada, 1999, page
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                   107


       11; Rajya Sabha Secretariat, Structure and Functions           A
       of Rajya Sabha Secretariat, (2009), at pages 2-3;
       Aharon Barak’s seminal book; Aharon Barak,
       Proportionality: Constitutional Rights and their
       Limitations, Cambridge University Press (2012) –
       referred to.
                                                                      B
       4.5 Aadhaar: the proportionality analysis
       4.5.1 When Aadhaar is seeded into every database, it
becomes a bridge across discreet data silos, which allows anyone
with access to this information to re-construct a profile of an
individual’s life. While Section 2(k) of the Aadhaar Act excludes
storage of individual information related to race, religion, caste,   C
tribe, ethnicity, language, income or medical history into CIDR,
the mandatory linking of Aadhaar with various schemes allows
the same result in effect. 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      D
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         E
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
the government provides to its citizens. Therefore, benefits and      F
services cannot be measured with the same yardstick as
subsidies. The inclusion of services and benefits in Section 7 is a
pre-cursor to the kind of function creep which is inconsistent
with privacy and informational self-determination. The broad
definitions of the expressions ‘services and ‘benefits’ would
enable government to regulate almost every facet of its               G
engagement with citizens under the Aadhaar platform. Section 7
suffers from clear overbreadth in its uncanalised application to
services and benefits. [Para 247][968-E-H; 969-A-C]
      Monnet Ispat and Energy Ltd v Union of India (2012)
      11 SCC 1 : [2012] 7 SCR 644 – referred to.                      H
108            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A           Federal Census Act Case (Volkszählungsurteil) (1983)
            65 BVerfGE 1; S and Marper v United Kingdom (2008)
            48 EHRR 1169; Aycaguer v. France Application no.
            8806/12; Digital Rights Ireland Ltd v. Minister C 293/
            12 and C 594/12; Michael Schwarz v. Stadt Bochum
            [2013] EUECJ C-291/12; Madhewoo v. The State of
B
            Mauritius [2016] UKPC 30; S and Marper v. The
            United Kingdom [2008] ECHR 1581; Vernonia School
            District 47J v. Acton 515 U.S. 646 (1995); Skinner v
            Railway Labor Executives’ Association 489 U.S. 602
            (1989); Whalen v Roe 429 U.S. 589 (1977); United
C           States v Dionisio 410 U.S. 1 (1973); Bowen v. Roy 476
            U.S. 693 (1986); In re Crawford 194 F.3d 954 (9th
            Cir. 1999); Haskell v. Harris 669 F.3d 1049 (9th Cir.
            2012); Utility Workers Union of America v. Nuclear
            Regulatory Commission 664 F. Supp. 136 (S.D.N.Y.
            1987); Nicholas A Iacobucci v. City of Newport 785
D
            F.2d 1354 (6th Cir. 1986); Thom v. New York Stock
            Exchange 306 F. Supp. 1002 (S.D.N.Y. 1969); Perkey
            v. Department of Motor Vehicles (1986) 42 Cal. 3D 185;
            Buchanan v Wing N.Y.S.2d 865; People v. Stuller 10
            Cal. App.3d 582 (1970); United States v. Kelly 55 F.2d
E           67 (2d Cir. 1932); Brown v. Brannon 399 F. Supp. 133
            (M.D.N.C. 1975) – referred to.
            Association pour la promotion de l’image Conseil d’
            Etat in France, 26 October 2011; Privacy and Security
            of Aadhaar: A Computer Science Perspective” –
F           referred to.
            4.5.2      Can the provisions of Section 7 be applied with
      any justification to pensions payable on account of the past service
      rendered by a person to the state? Pension is not a largesse or
      bounty conferred by the state. Pension, as a condition of service,
      attaches as a recompense for the long years of service rendered
G     by an individual to the state and its instrumentalities. 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
H     rightfully entitled. This aim of the government can be fulfilled by
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      109


other less intrusive measures. The requirement of insisting on           A
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
                                                                         B
meals or scholarships, to children belonging to the marginalised
segments of the society. The object of the state is to ensure that
the benefits which it offers are being availed of by genuine students
who are entitled to them. This legitimate aim can be fulfilled by
adopting less intrusive measures as opposed to the mandatory
enforcement of the Aadhaar scheme as the sole repository of              C
identification. The state has failed to demonstrate that a less
intrusive measure other than biometric authentication will not
subserve its purposes. The inclusion of benefits and services in
Section 7 suffers from a patent ambiguity, vagueness and
overbreadth which renders the inclusion of services and benefits
                                                                         D
arbitrary and violative of Article 14. [Para 248][969-G-H; 970-A-
C]
      Maneka Gandhi v. Union of India (1978) 1 SCC 248 :
      [1978] 2 SCR 621; Vishaka v. State of Rajasthan (1997)
      6 SCC 241 : [1997] 3 Suppl. SCR 404; Githa
      Hariharan (Ms) v. Reserve Bank of India (1999) 2 SCC               E
      228 : [1999] 1 SCR 669; Anuj Garg v. Hotel
      Association of India (2008) 3 SCC 1 : [2007] 12
      SCR 991; National Legal Services Authority v. Union
      of India (2014) 5 SCC 438; Madhu Kishwar v. State of
      Bihar (1996) 5 SCC 125 : [1996] 1 Suppl. SCR 442;                  F
      Nandini Sundar v. State of Chattisgarh (2011) 7 SCC
      547 : [2011] 8 SCR 1028 – relied on.
      Betty Drexhage, Bicameral Legislatures: An
      International Comparison, Ministry of the Interior and
      Kingdom Relations- Netherlands (2015), at page 7;
      Abhinay Muthoo & Kenneth A. Shepsle, The                           G
      Constitutional Choice of Bicameralism, in Institutions
      and Economic Performance (Elhanan Helpman ed.),
      Harvard University Press (2008), at pages 251-252;
      James Madison, The Federalist No. 62 – The Senate,
      The Federalist Papers (1788); William H. Riker, The                H
110            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A           Justification of Bicameralism, International Political
            Science Review (1992), Vol. 13, Issue 1, at pages
            101–16; Saul Levmore, Bicameralism: When Are Two
            Decisions Better than One?, International Review of
            Law and Economics (1992), Vol. 12, at pages 147-
            148; James N. Druckman & Michael F. Thies, The
B
            Importance of Concurrence: The Impact of
            Bicameralism on Government Formation and
            Duration, American Journal of Political Science
            (2002), Vol. 46, No. 4, at pages 760-771; Elliot Bulmer,
            Bicameralism, International Institute for Democracy
C           and Electoral Assistance (2017), at page 4; James R.
            Rogers, The Advantage of Second Chambers in
            Republican Legislatures: An Informational Theory,
            at page 6; “Privacy and Data Protection Issues of
            Biometric Applications: A Comparative Legal
            Analysis”; Automating Inequality: How High-Tech
D
            Tools Profile, Police, and Punish the Poor”; Aadhaar
            and Food Security in Jharkhand: Pain without Gain?”
            – referred to.
             4.5.3 Aadhaar is about identification and is an instrument
      which facilitates a proof of identity. It must not obliterate
E     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, the linking of the Aadhaar number to different databases
      is capable of profiling an individual, which could include information
F     regarding her/his race, religion, caste, tribe, ethnicity, language,
      records of entitlement, income or medical history. Thus, the
      impact of technology is such that the scheme of Aadhaar can
      reduce different constitutional identities into a single identity of
      a 12-digit number and infringe the right of an individual to identify
      herself/himself with choice. [Para 252][974-F-G; 975-A]
G
            4.5.4 Social security schemes and programmes are a
      medium of existence of a large segment of society. Social security
      schemes in India, such as the PDS, were introduced to protect
      the dignity of the marginalized. Exclusion from these schemes
      defeats the rationale for the schemes which is to overcome chronic
H     hunger and malnutrition. Exclusion is violative of human dignity.
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                    111


The statistics recorded in government records and the affidavits       A
filed by the petitioners point out glaring examples of exclusion
due to technical errors in Aadhaar. Exclusion as a consequence
of biometric devices has a disproportionate impact on the lives
of the marginalized and poor. Compulsive linking of biometrics
to constitutional entitlements should not result in denial to the
                                                                       B
impoverished. The Court has to be specifically conscious of the
dignity of the underprivileged. The exclusion errors in this case
have led to grave injustice to the marginalized. The Court,
therefore, has to play an active role in protecting their dignity.
[Para 253][975-B-F]
      4.5.5 There is no antinomy between the right to privacy          C
and the legitimate goals of the State. An invasion of privacy has
to be proportional to and carefully tailored for achieving a
legitimate aim. While the right to food is an important right and
its promotion is a constitutional obligation of the State, yet the
right to privacy cannot simply and automatically yield to it. No       D
legitimate goal of the State can be allowed at the cost of
infringement of a fundamental right without passing the test of
constitutionality. While analysing the architecture of Aadhaar, this
Court has demonstrated how the purported safeguards in the
Aadhaar architecture are inadequate to protect the integrity of
personal data, the right of informational self-determination and       E
above all rights attributable to the privacy-dignity-autonomy
trilogy. It is also concluded that the Aadhaar scheme is capable
of destroying different constitutional identities. The financial
exclusion caused due to errors in Aadhaar based authentication
violate the individual’s right to dignity. The Aadhaar scheme          F
causes an unwarranted intrusion into fundamental freedoms
guaranteed under the Indian Constitution since the respondents
have failed to demonstrate that these measures satisfy the test
of necessity and proportionality. [Para 255][976-D-G]
      4.6 Dignity and financial exclusion: Dignity is an integral      G
element of natural law and an inalienable constitutional construct.
To lead a dignified life is a constitutional assurance to an
individual. Any action or inaction on the part of the State which is
insensitive to and unconcerned about protecting the dignity of
the marginalized is constitutionally impermissible. Denial of
benefits arising out of any social security scheme which promotes      H
112            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A     socio-economic rights of the marginalized, would not be legitimate
      under the Constitution, for the reason that such denial violates
      human dignity. No individual can be made to part with his or her
      dignity. Responsibility for protection of dignity lies not only with
      governments but also with individuals, groups and entities.
      Section 7 of the Aadhaar Act makes it mandatory for an individual
B
      to undergo authentication or furnish proof of possession of an
      Aadhaar number in order to avail a subsidy, benefit or service,
      which incurs expenditure from the Consolidated Fund of India.
      Errors in biometrics matching imply that an individual will not be
      considered a part of the biometrics database. If a benefit or service
C     is subject to the matching of biometrics, then any mismatch would
      result in a denial of that benefit or service. Exclusion based on
      technological errors, with no fault of the individual, is a violation
      of dignity. The fate of individuals cannot be left to the
      vulnerabilities of technological algorithms or devices. Even a
      small percentage of error results in a population of crores being
D
      affected. Denial of subsidies and benefits to them due to the
      infirmities of biometric technology is a threat to good governance
      and social parity. [Paras 256, 257, 258, 262][976-G; 977-B; 978-
      B-C, E; 984-G; 986-D]
            4.7 Constitutional validity of Section 139AA of the Income
E     Tax Act 1961
            Section 139AA of the Income Tax Act 1961 which was
      inserted by the Finance Act 2017, mandates the quoting of an
      Aadhaar number in the application for a Permanent Account
      Number (PAN) and in the return of income tax. Failure to intimate
F     an Aadhaar number results in the PAN being deemed invalid
      retrospectively. Section 139AA of the Income Tax Act 1962 is
      postulated on the requirement of Aadhaar having been enacted
      under a valid piece of legislation. The validity of the legislation
      seeding Aadhaar to PAN is dependent upon and cannot be
      segregated from the validity of the parent Aadhaar legislation.
G     The decision in Puttaswamy has recognised that protection of
      the interests of the revenue constitutes a legitimate state aim in
      the three-pronged test of proportionality. The circumstances
      which have been adverted to in the decision in Binoy Viswam are
      a sufficient indicator of the legitimate concerns of the revenue to
H     curb tax evasion, by embarking upon a programme for
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                       113


de-duplication of the Pan data base. A legitimate state aim does          A
exist. However, that in itself is not sufficient to uphold the validity
of the law, which must meet the other parameters of
proportionality spelt out in Puttaswamy. The explanation to Section
139AA adopts the definition of the expressions ‘Aadhaar
number’, ‘enrolment’ and ‘resident’ from the parent Aadhaar
                                                                          B
legislation. The seeding of Aadhaar with Pan cards must depend
for its validity on the constitutional validity of the Aadhaar
legislation. Hence, besides affirming that the object of the
measure in Section 139AA constitutes a legitimate state aim, the
decision of this Court in regard to the validity of Aadhaar will
impact upon the seeding of PAN with Aadhaar, which Section                C
139AA seeks to achieve. [Paras 271, 278][995-A; 1003-B; 1005-
D-F]
       Binoy Viswam v. Union of India (2017) 7 SCC 59 :
       [2017] 7 SCR 1; Malpe Vishwanath Acharya v. State
       of Maharashtra (1998) 2 SCC 1 : [1997] 6 Suppl. SCR                D
       717; Mardia Chemicals Ltd. v. Union of India (2004) 4
       SCC 311 : [2004] 3 SCR 982; State of Tamil Nadu v.
       K Shyam Sunder (2011) 8 SCC 737 : [2011]
       11 SCR 1094; Andhra Pradesh Dairy Development
       Corporation Federation v. B Narasimha Reddy (2011)
       9 SCC 286 : [2011] 14 SCR 1; K T Plantation Private                E
       Limited v. State of Karnataka (2011) 9 SCC 1 : [2011]
       13 SCR 636; Avishek Goenka v. Union of India (2012)
       5 SCC 275 : [2012] 5 SCR 547 – referred to.
       4.8 Linking of SIM cards and Aadhaar numbers
        The state cannot be oblivious to the need to protect privacy      F
and of the dangers inherent in the utilization of the Aadhaar
platform by telecom service providers. In the absence of adequate
safeguards, the biometric data of mobile subscribers can be
seriously compromised and exploited for commercial gain. While
asserting the need for proper verification, the state cannot
                                                                          G
disregard the countervailing requirements of preserving the
integrity of biometric data and the privacy of mobile phone
subscribers. 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           H
114           SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A     legitimate state aim and should not be either disproportionate or
      excessive in their encroachment on individual liberties. Mobile
      technology has become a ubiquitous feature of our age. Mobile
      phones are not just instruments to facilitate a telephone
      conversation. They are a storehouse of data reflecting upon
      personal preferences, lifestyles and individual choices. They bear
B
      upon family life, the workplace and personal intimacies. The
      conflation of biometric data with SIM cards is replete with grave
      dangers to personal autonomy. A constitution based on liberal
      values cannot countenance an encroachment of this nature. The
      decision to link Aadhaar numbers to SIM cards and to enforce a
C     regime of e-KYC authentication clearly does not pass
      constitutional muster and must stand invalidated. All TSPs shall
      be directed by the Union government and by TRAI to forthwith
      delete the biometric data and Aadhaar details of all subscribers
      within two weeks. The above data and Aadhaar details shall not
      be used or purveyed by any TSP or any other person or agency
D
      on their behalf for any purpose whatsoever. [Paras 283, 284,
      285][1008-G-H; 1009-A, C-F]
            5. Money laundering rules
            5.1 Parliament enacted a law on money-laundering as part
      of a concerted effort by the international community to deal with
E     activities which constitute a threat to financial systems and to
      the integrity and sovereignty of nations. Rule 9 of the 2005 Rules
      requires every reporting entity to carry out client due diligence
      at the time of the commencement of an account-based
      relationship. Due diligence requires a verification of the identity
F     of the client and a determination of whether the client is acting
      on behalf of a beneficial owner, who then has to be identified.
      [Paras 286, 288][1009-G-H; 1013-E]
            Lokniti Foundation v. Union of India (2017) 7 SCC
            155; Bombay Dyeing and Mfg v. Bombay Environmental
            Action Group (2006) 3 SCC 434 : [2006] 2 SCR 920 –
G
            referred to.
            5.2 As a result of the amendment to the Rules brought
      about in 2017, Rule 9(4) mandates that in the case of a client who
      is an individual, who is eligible to be enrolled for an Aadhaar
      number, submission of the Aadhaar number is mandatory. Instead
H     of furnishing an option to submit one of six OVDs, submission of
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                    115


Aadhaar number alone is mandated. Where an Aadhaar number              A
has not been assigned, proof of an application for enrolment is
required to be submitted. Under Rule 9(15), the reporting entity
at the time of receipt of an Aadhaar number is under an obligation
to carry out authentication using either the e-KYC authentication
facility or the yes/no authentication provided by UIDAI. If a client
                                                                       B
who is eligible to be enrolled for Aadhaar and to obtain a PAN
card does not submit its details while commencing an account
based relationship, there is a period of six months reserved for
submission. Those who already have accounts are required to
submit their Aadhaar numbers by a stipulated date. Failure to do
so, renders the account subject to the consequence that it shall       C
cease to be operational until compliance is effected. [Para
295][1022-C-F]
       5.3 The state has a legitimate aim in preventing money-
laundering. In fact, it is with a view to curb and deal with money-
laundering that the original version of the Master Circular as         D
well as its updated version impose conditions for initial and on-
going due diligence. The Reserve Bank has introduced several
reporting requirements including those required to comply with
FATCA norms. The existence of a legitimate state aim satisfies
only one element of proportionality. Requiring every client in
an account based relationship to link the Aadhaar number with a        E
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        F
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       G
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 perfectly
genuine customer who is involved in no wrongdoing would be
deprived of the use of the moneys and investments reflected in
                                                                       H
116            SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A     the account, in violation of Article 300A of the Constitution purely
      on an assumption that he or she has indulged in money-
      laundering. The classification is over-inclusive: a uniform
      requirement of such a nature cannot be imposed on every account
      based relationship irrespective of the risks involved to the
      financial system. The account of a pensioner or of a salaried
B
      wage earner cannot be termed with the same brush as a high net-
      worth individual with cross-border inflows and outflows. Treating
      every account holder with a highly intrusive norm suffers from
      manifest arbitrariness. Blocking an account is a deprivation of
      property under Article 300A. The Union Government has been
C     unable to discharge the burden of establishing that this was the
      least intrusive means of achieving its aim to prevent money-
      laundering or that its object would have been defeated if it were
      not to impose the requirement of a compulsory linking of Aadhaar
      numbers with all account based relationships with the reporting
      entity. Money-laundering is indeed a serious matter and the Union
D
      Government is entitled to take necessary steps including by
      classifying transactions and sources which give rise to reasonable
      grounds for suspecting a violation of law. But, to impose a uniform
      requirement of linking Aadhaar numbers with all account based
      relationships is clearly disproportionate and excessive. It fails to
E     meet the test of proportionality and suffers from manifest
      arbitrariness. [Para 296][1022-G-H; 1023-A-H; 1024-A-B]
            6. Savings in Section 59
             6.1 Section 59 is a validating provision. It seeks to validate
      all the actions of the Central Government prior to the Aadhaar
F     Act, which were done under the notifications of 28 January 2009
      and 12 September 2015. Section 59 does not validate actions of
      the state governments or of private entities. Acts undertaken by
      the State governments and by private entities are not saved by
      Section 59. The website of the Press Information Bureau of the
G     Government of India states that, by the time Aadhaar Act was
      notified by the Central government, UIDAI had generated about
      100 crore Aadhaar numbers. 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
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                    117


provision does not extend to the collection of biometric data before   A
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 authorised by the 2009
notification, Section 59 of the Aadhaar Act does not validate these
actions. [Paras 302, 303][1027-B-C, E-G]
                                                                       B
      6.2 The invasion of any right flowing from privacy places a
heavy onus upon the State to justify its actions. Nine judges of
this Court in Puttaswamy categorically held that there must be a
valid law in existence to encroach upon the right to privacy. A
valid law, in this case, would mean a law enacted by Parliament,
which is just, fair and reasonable. Any encroachment upon the          C
fundamental right to privacy cannot be sustained by an executive
notification. There is also no merit in the submission of the
Respondents that prior to the enactment of the Aadhaar Act, no
individual has been enrolled under compulsion, and since all
enrolments were voluntary, these cannot be considered to be in         D
breach of Article 21 or any other fundamental right. The format
of the first two enrolment forms used by UIDAI, under which
around 90 crore enrolments were done, had no mention of
informed consent or the use of biometrics. Apart from the
existence of a valid law which authorises an invasion of privacy,
Puttaswamy requires that the law must have adequate safeguards         E
for the collection and storage of personal data. Data protection,
which is intrinsic to privacy, seeks to protect the autonomy of
the individual. The judgment noted the centrality of consent in a
data protection regime. The Aadhaar Act provides certain
safeguards in Section 3(2) and Section 8(3) for the purposes of        F
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             G
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
                                                                       H
118            SUPREME COURT REPORTS                      [2018] 8 S.C.R.


A     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
B
      of law. Moreover, it is a principle of criminal law that it cannot be
      applied retrospectively to acts which were not offences at the
      time when they took place. Article 20(1) of the Constitution
      provides that “No person shall be convicted of any offence except
      for violation of the law in force at the time of the commission of
C     the act charged as an offence”. The application of the criminal
      provisions of the Act, provided under Chapter VII of the Act
      which deals with “Offences and Penalties”, cannot be extended
      to the period prior to the enactment of the Aadhaar Act. [Para
      304][1028-B-G; 1029-A-D]
D            6.4 Section 43A applies only 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
E     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
F     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
G     provisions of the Information Technology Act.[Para 306][1032-
      D-F]
            K Industries Ltd v. Union of India (2007) 13 SCC 673
            : [2007] 12 SCR 136; West Ramnad Electric
            Distribution Co. Ltd. v. State of Madras [1963] 2 SCR
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                  119


     747; State of Mysore v. D. Achiah Chetty, Etc1 (1969) 1         A
     SCC 248 : [1969] 3 SCR 55; Hari Singh v. Military
     Estate Officer (1972) 2 SCC 239 : [1973] 1 SCR 515;
     State of Karnataka v. State of Tamil Nadu (2017) 3 SCC
     362 : [2016] 8 SCR 499; Jaora Sugar Mills (P) Ltd. v.
     State of Madhya Pradesh [1966] 1 SCR 523; SKG Sugar
                                                                     B
     Ltd. v. State of Bihar (1974) 4 SCC 827 : [1975]
     1 SCR 312; Krishna Chandra Gangopadhyaya v.
     Union of India (1975) 2 SCC 302 : [1975] Suppl.
      SCR 151 – referred to.
      6.5 There were several deficiencies in the collection of
biometric data during the period between 2009 and 2016, before       C
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       D
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,      E
the collection of biometric data prior of the enactment of Aadhaar
Act 2016 is ultra vires. [Para 317][1041-G-H; 1042-A-B]
     State of A P v. McDowell & Co (1996) 3 SCC 709 :
     [1996] 3 SCR 721; State of Madhya Pradesh v. Rakesh
     Kohli (2012) 6 SCC 312 : [2012] 6 SCR 661; Rajbala              F
     v. State of Haryana (2016) 2 SCC 445 : [2015] 12
     SCR 1106; Ajay Hasia v. Khalid Mujib Sehravardi
     (1981) 1 SCC 722 : [1981] 2 SCR 79; Dr. K R
     Lakshmanan v. State of T N (1996) 2 SCC 226 : [1996]
     1 SCR 395; E P Royappa v. State of Tamil Nadu (1974)            G
     4 SCC 3 : [1974] 2 SCR 348; Bishambhar Nath Kohli
     v. State of Uttar Pradesh [1966] 2 SCR 158; State of
     Karnataka v. State of Tamil Nadu (2017) 3 SCC 362 :
     [2016] 8 SCR 499; Amarendra Kumar Mohapatra v.
     State of Orissa (2014) 4 SCC 583 : [2014] 2 SCR 1031;
                                                                     H
120            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A           Shri Prithvi Cotton Mills Ltd v. Broach Borough
            Municipality (1969) 2 SCC 283 : [1970] 1 SCR 388 –
            referred to.
            7. Rule of law and violation of interim orders
             7.1 The rule of law is the cornerstone of modern democratic
B     societies and protects the foundational values of a democracy.
      When the rule of law is interpreted as a principle of
      constitutionalism, it assumes a division of governmental powers
      or functions that inhibits the exercise of arbitrary State power. It
      also assumes the generality of law: the individual’s protection
C     from arbitrary power consists in the fact that her personal dealings
      with the State are regulated by general rules, binding on private
      citizens and public officials alike. 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
D     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. [Para 323][1046-C-E]
E            7.2 Interim orders of courts are an integral element of
      judicial review. Interim directions issued on the basis of the prima
      facie findings in a case are temporary arrangements till the matter
      is finally decided. Interim orders ensure that the cause which is
      being agitated does not become infructuous before the final
F     hearing. The power of judicial review is not only about the writs
      issued by superior courts or the striking down of governmental
      action. Entrustment of judicial review is accompanied by a duty
      to ensure that judicial orders are complied with. Unless orders
      are enforced, citizens will lose faith in the efficacy of judicial review
      and in the legal system. When the Aadhaar Act was notified on 25
G     March 2016, the interim directions issued by this court were in
      operation. Once a law was enacted by Parliament, a statutory
      authorisation was brought into existence to enable government
      to issue administrative instructions. Hence, compliance with the
      interim orders stands obviated upon the enactment of the law.
H     [Paras 331, 333][1054-A-B; 1059-A, B-C]
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                    121


      7.3 Judicial orders, be they interim or final, cannot simply     A
be wished away. If governments or citizens were allowed to ignore
judicially enforceable directions, that would negate the basis of
the rule of law. Both propriety and constitutional duty required
Union government to move this Court after the enactment of the
Aadhaar Act for variation of the interim orders. The existence of
                                                                       B
law (post 2016) is only one aspect to be considered in deciding
the interim arrangement which would hold the field when the
constitutional challenge was pending adjudication before this
Court. Institutions of governance are bound by a sense of
constitutional morality which requires them to abide by judicial
orders. What seems to emerge from the course of action which           C
has been followed in the present case by government is a
perception that judicial directions can be ignored on a supposed
construction of the statute. Besides the fact that this construction
is erroneous in law, it is above all, the fundamental duty of this
Court to ensure that its orders are not treated with disdain.
                                                                       D
[Para 334][1060-C, D-F]
      Sahib Ram Jawaya Kapur v. State of Punjab [1955] 2
      SCR 225; S G Jaisinghani v. Union of India [1967] 2
      SCR 703; Smt Indira Nehru Gandhi v. Shri Raj Narain
      (1975) Supp SCC 1 : [1976] SCR 347; State of Tamil
      Nadu v. State of Kerala (2014)12 SCC 696; State of               E
      Bihar v. Bal Mukund Sah (2000) 4 SCC 640 : [2000]
      2 SCR 299; Additional District Magistrate, Jabalpur
      v. Shivakant Shukla (1976) 2 SCC 521 : [1976] Suppl.
      SCR 172; L Chandra Kumar v. Union of India (1997)
      3 SCC 261 : [1997] 2 SCR 1186; I R Coelho v. State of            F
      Tamil Nadu (2007) 2 SCC 1 : [2007] 1 SCR 706;
      Krishna Kumar Singh v. State of Bihar (2017) 3 SCC 1
      : [2017] 5 SCR 160; State of M.P. v. Thakur Bharat
      Singh [1967] 2 SCR 454; S P Sampath Kumar v. Union
      of India (1987) 1 SCC 124 : [1987] 1 SCR 435; K.T.
      Plantation (P) Ltd. v. State of Karnataka (2011) 9 SCC           G
      1 : [2011] 13 SCR 636; State of Assam v. Barak
      Upatyaka DU Karmachari Sanstha (2009) 5 SCC 694;
      Bhubaneshwar Singh v. Union of India (1994) 6 SCC
      77 : [1994] 1 Suppl. SCR 639; P Sambamurthy v. State
                                                                       H
122            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A           of Andhra Pradesh (1987) 1 SCC 362 : [1987] 1 SCR
            879; Re: Arundhati Roy (2002) 3 SCC 343 : [2002]
            2 SCR 213 – relied on.
            Unique Identification Authority of India v. Central
            Bureau of Investigation SLP (Crl.) No. 2524/2015; All
B           Bengal Minority Students Council v. Union of India WP
            (Civil) No. 686/2016 – referred to.
             7.4 Constitutional morality requires that the faith of the
      citizens in the constitutional courts of the country be maintained.
      Disobedience of the interim orders of this Court and its
C     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. The brazen manner
D     in which notifications have been issued making Aadhaar
      mandatory, despite the interim order of this Court is a matter of
      serious concern. Deference to the institutional authority of the
      Supreme Court is integral to the values which the Constitution
      adopts. The postulate of a limited government is enforced by
E     the role of the Supreme Court in protecting the liberties of citizens
      and holding government accountable for its transgressions. The
      authority of this Court is crucial to maintaining the fine balances
      of power on which democracy thrives and survives. The orders
      of the Court are not recommendatory – they are binding
      directions of a constitutional adjudicator. Dilution of the
F     institutional prestige of this Court can only be at the cost of
      endangering the freedom of over a billion citizens which judicial
      review seeks to safeguard. [Para 337][1062-D; 1063-A-D]
            Kesavananda Bharati v. State of Kerala (1973) 4 SCC
            225 : [1973] Suppl. SCR 1 – followed.
G
            Aycaguer v. France Application no. 8806/12; Digital
            Rights Ireland Ltd v. Minister C 293/12 and C 594/12 –
            referred to.
            Association pour la promotion de l’image Conseil d’
            Etat in France, 26 October 2011– referred to.
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA   123


                      Case Law Reference              A
     [In the judgment of Sikri, J.]
[1954] SCR 1077              referred to   Para 18
(2010) 5 SCC 318             referred to   Para 22
(2010) 13 SCC 45             referred to   Para 22    B
[2013 ] 4 SCR 66             referred to   Para 23
(2017) 10 SCC 1              followed      Para 45
[1959] Supp 1 SCR 528        relied on     Para 72
                                                      C
[1950] SCR 594               relied on     Para 72
[1978] 1 SCR 641             relied on     Para 72
[1977] 2 SCR 790             relied on     Para 72
[1996] 1 SCR 278             relied on     Para 72
                                                      D
[2017] 7 SCR 1               relied on     Para 75
[2012] 6 SCR 661             referred to   Para 76
[2008] 4 SCR 1               referred to   Para 76
[1996] 3 SCR 721             referred to   Para 76
                                                      E
[2015] 12 SCR 1106           referred to   Para 76
[2017] 7 SCR 797             relied on     Para 77
[1996] 1 SCR 395             relied on     Para 77
[1978] 2 SCR 621             relied on     Para 77    F
[1975] 3 SCR 946             referred to   Para 81
[1964] 1 SCR 332             referred to   Para 84
(2018) 5 SCC 1               relied on     Para 95
(2014) 5 SCC 438             relied on     Para 96    G
[2015] 8 SCR 289             relied on     Para 98
[2016] 4 SCR 638             relied on     Para 99
[2011] 4 SCR 1057            relied on     Para 101
                                                      H
124          SUPREME COURT REPORTS             [2018] 8 S.C.R.


A     (2016) 7 SCC 353           relied on       Para 118
      [2010] 5 SCR 381           referred to     Para 132
      [2004] 5 Suppl. SCR 833    referred to     Para 136
      [2010] 6 SCR 291           referred to     Para 237
B     (2011) 14 SCC 331          referred to     Para 251
      (2013) 6 SCC 620           referred to     Para 252
      [1973] Suppl. SCR 1        followed        Para 264
      (2001) 5 SCALE 303         relied on       Para 270
C     [1996] 2 Suppl. SCR 331    relied on       Para 275
      [1992] 3 SCR 658           relied on       Para 275
      [1993] 1 SCR 594           relied on       Para 275
      [1985] SCR 2 Suppl. 51     relied on       Para 275
D
      [1981] 2 SCR 516           relied on       Para 276
      [2003] 2 SCR 1136          relied on       Para 310
      [2016] 3 SCR 865           relied on       Para 312
      (2007) 15 SCC 49           relied on       Para 327
E
      [2014] 3 SCR 359           relied on       Para 347
      [1996] 10 Suppl. SCR 321   relied on       Para 348
      [1996] 8 Suppl. SCR 464    referred to     Para 353
      [2014] 9 SCR 1063          referred to     Para 353
F
      [1963] 2 SCR 747           followed        Para 371
      [1966] 2 SCR 158           relied on       Para 371
      [1969] 3 SCR 55            relied on       Para 372
G     [2016] 8 SCR 499           relied on       Para 372
      [1967] 2 SCR 454           referred to     Para 376
      [1975] 3 SCR 946           referred to     Para 376
      [1987] 1 SCR 435           referred to     Para 376
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA   125


(1991) 4 SCC 699           referred to    Para 376    A
[2007] 1 SCR 706           referred to    Para 376
[2011] 8 SCR 1028          referred to    Para 376
[1981] 1 SCR 206           referred to    Para 378
[1973] Suppl. SCR 1        referred to    Para 379    B
[2014] 9 SCR 965           referred to    Para 381
(2018) SCC Online SC 661   referred to    Para 384
(1991) Supp. 2 SCC 608     referred to    Para 393
                                                      C
[1993] 3 SCR 719           referred to    Para 394
[1994] 2 SCR 644           referred to    Para 396
[2007] 1 SCR 317           referred to    Para 396
[1992] 1 SCR 686           referred to    Para 396
                                                      D
[2006] 5 Suppl. SCR 1      relied on      Para 397
(2014) 11 SCC 415          referred to    Para 398
(2016) 3 SCC 183           referred to    Para 399
[1963] Supp 1 SCR 275      referred to    Para 400
                                                      E
[2010] 3 SCR 1059          referred to    Para 400
AIR 1960 SC 1186           referred to    Para 400
AIR 1963 Pat 16            referred to    Para 401
[1969] 1 SCR 478           referred to    Para 401    F
[1957] SCR 399             referred to    Para 402
[2002] 3 Suppl. SCR 220    referred to    Para 402
[1994] 5 Suppl. SCR 526    referred to    Para 402
[2011] 8 SCR 725           relied on      Para 430    G
[1995] 1 SCR 877           relied on      Para 432
(2017) 7 SCC 155           relied on      Para 439


                                                      H
126           SUPREME COURT REPORTS                   [2018] 8 S.C.R.


A     In the judgment of Ashok Bhushan, J. (Partly concurring)
      [1954] SCR 1077             referred to           Para 24
      [1964] SCR 332              referred to           Para 24
      [2017] 10 SCR 1             followed              Para 37
B     [2017] 7 SCR 1              referred to           Para 56
      (2014) 5 SCC 438            referred to           Para 125
      [2013] 8 SCR 631            relied on             Para 195
      (2011) 14 SCC 331           referred to           Para 210
C
      (2013) 14 SCC 368           referred to           Para 211
      [1981] 2 SCR 516            relied on             Para 213
      (2013) 11 SCC 783            referred to          Para 230
      [2014] 3 SCR 359            referred to           Para 240
D
      [1996] 10 Suppl. SCR 321    referred to           Para 243
      [2010] 5 SCR 381            held inapplicable     Para 249
      [1962] SCR 10               relied on             Para 252
      [2014] 9 SCR 1063           relied on             Para 262
E
      [1952] SCR 597              relied on             Para 268
      [2000] 4 Suppl. SCR 693     relied on             Para 269
      [2003] 6 Suppl. SCR 1235    relied on             Para 270

F     (2016) 7 SCC 353            relied on             Para 271
      [1963] SCR 747              relied on             Para 289
      [1954] SCR 779              relied on             Para 289
      [1966] SCR 158              relied on             Para 296
G     [1973] 1 SCR 515            followed              Para 297
      [1975] Suppl. SCR 151       relied on             Para 298
      [2003] 5 Suppl. SCR 751     relied on             Para 299
      [1969] 3 SCR 55             referred to           Para 300
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA          127


[1998] 3 SCR 421             relied on            Para 302   A
[2016] 8 SCR 499             relied on            Para 303
(2017) 7 SCC 155             distinguished        Para 326
[1962] Suppl. SCR 697        held inapplicable    Para 339
[1975] 3 SCR 619             held inapplicable    Para 340   B
[1979] 1 SCR 820             held inapplicable    Para 340
(1984) 4 SCC 27              held inapplicable    Para 340
[2003] 1 SCR 975             held inapplicable    Para 340
                                                             C
[2011] 14 SCR 657            referred to          Para 341
[1992] 1 SCR 686             relied on            Para 350
[2007] 1 SCR 317             relied on            Para 351
(2014) 11 SCC 415            not correct law      Para 354
                                                             D
(2016) 3 SCC 183             not correct law      Para 354
[2017] 7 SCR 1               relied on            Para 365
[2017] 7 SCR 797             relied on            Para 367
[2013] 13 SCR 1              relied on            Para 375
                                                             E
In the judgment of Dr. D. Y. Chandrachud, J. (Dissenting)
(2017) 10 SCC 1              followed             Para 204
[2012] 7 SCR 644             referred to          Para 233
[1978] 2 SCR 621             relied on            Para 251   F
[1997] 3 Suppl. SCR 404      relied on            Para 251
[1999] 1 SCR 669             relied on            Para 251
[2007] 12 SCR 991            relied on            Para 251
(2014) 5 SCC 438             relied on            Para 251   G
[1996] 1 Suppl. SCR 442      relied on            Para 251
[2011] 8 SCR 1028            relied on            Para 251
[2017] 7 SCR 1               referred to          Para 272
                                                             H
128          SUPREME COURT REPORTS            [2018] 8 S.C.R.


A     [1996] 3 SCR 721          referred to     Para 273
      [2012] 6 SCR 661          referred to     Para 273
      [2015] 12 SCR 1106        referred to     Para 273
      [2017] 7 SCR 797          relied on       Para 274
B     [1981] 2 SCR 79           referred to     Para 274
      [1996] 1 SCR 395          referred to     Para 274
      [1974] 2 SCR 348          referred to     Para 274
      [1997] 6 Suppl. SCR 717   referred to     Para 274
C
      [2004] 3 SCR 982          referred to     Para 274
      [2011] 11 SCR 1094        referred to     Para 274
      [2011] 14 SCR 1           referred to     Para 274
      [2011] 13 SCR 636         referred to     Para 274
D
      [2012] 5 SCR 547          referred to     Para 279
      (2017) 7 SCC 155          referred to     Para 280
      [2006] 2 SCR 920          referred to     Para 290
      [2007] 12 SCR 136         referred to     Para 290
E
      [1963] 2 SCR 747          referred to     Para 299
      [1969] 3 SCR 55           referred to     Para 299
      [1973] 1 SCR 515          referred to     Para 299

F     [2016] 8 SCR 499          referred to     Para 299
      [1966] 1 SCR 523          referred to     Para 312
      [1975] 1 SCR 312          referred to     Para 312
      [1975] Suppl. SCR 151     referred to     Para 312
G     [1966] 2 SCR 158          referred to     Para 318
      [2016] 8 SCR 499          referred to     Para 318
      [2014] 2 SCR 1031         referred to     Para 321
      [1970] 1 SCR 388          referred to     Para 322
H     [1955] 2 SCR 225          relied on       Para 324
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA      129


[1967] 2 SCR 703          relied on           Para 324   A
[1973] Suppl. SCR 1       followed            Para 324
[1976] SCR 347            relied on           Para 324
(2014) 12 SCC 696         relied on           Para 324
[2000] 2 SCR 299          relied on           Para 324   B
[1965] 1 SCR 413          relied on           Para 325
[1976] Suppl. SCR 172     relied on           Para 325
[1997] 2 SCR 1186         relied on           Para 325
                                                         C
[2007] 1 SCR 706          relied on           Para 326
[2017] 5 SCR 160          relied on           Para 327
[1967] 2 SCR 454          relied on           Para 328
[1987] 1 SCR 435          relied on           Para 329
                                                         D
[2011] 13 SCR 636         relied on           Para 330
(2009) 5 SCC 694          relied on           Para 331
[1994] 1 Suppl. SCR 639   relied on           Para 333
[1987] 1 SCR 879          relied on           Para 335
                                                         E
[2002] 2 SCR 213          relied on           Para 336
(2014) 11 SCC 415         overruled           Para 339
(2016) 3 SCC 183          overruled           Para 339
[1965] SCR 413            relied on           Para 339   F
[2010] 3 SCR 1059         relied on           Para 339
[2007] 1 SCR 1            relied on           Para 339
[1963] Supp 1 SCR 275     relied on           Para 339
AIR 1960 SC 1186          relied on           Para 339   G
[2002] 3 Suppl. SCR 220   held inapplicable   Para 115
[1957] SCR 399            relied on           Para 114
[2008] 12 SCR 1083        relied on           Para 114
                                                         H
130             SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A          CIVIL / CRIMINAL ORIGINAL / APPELLATE
      JURISDICTION: Writ Petition (Civil) No. 494 of 2012.
             Under Article 32 of the Cconstitution of India.
                                       WITH
             W.P. (C) Nos.833, 829 and 932/2013
B
             W.P.(C) No.37 and 220 of 2015
             W.P. (C) Nos. 231 and 797 of 2016
             W.P.(C) Nos. 342, 372, 841, 1058, 966, 1014, 1002 and 1056 of
      2017
C            SLP(Crl.) No. 2524/2014
             T.C.(C) Nos.151, 152, 1797 and 1796 of 2013
             T.P.(C) Nos.313 and 312 of 2014
             T.P.(C) No. 921/2015
D            Conmt.Pet.(C) No.144/2014 In W.P.(C) No.494/2012
             Conmt.Pet.(C) No.674/2015 In W.P.(C) No.829/2013
             Conmt.Pet.(C) No.470/2015 In W.P.(C) No.494/2012
             Conmt.Pet.(C) No.444/2016 In W.P.(C) No.494/2012
             Conmt.Pet.(C) No.608/2016 In W.P.(C) No.494/2012
E
             Conmt.Pet.(C) No.844/2017 In W.P.(C) No.494/2012
             Conmt.Pet.(C) No.34/2018 in W.P.(C) No.1014/2017
             K.V. Venugopal, AG, Tushar Mehta, ASG, Anil Grover, AAG, Gopal
      Subramonium, Ms. Meenakshi Arora, K.V. Viswanathan, Shyam Divan,
F     C.U. Singh, Shyam Divan, P. Chidambaram, Anand Grover,
      Arvind P. Datar, Rakesh Dwivedi, Jayant Bhushan, V. Giri, Sajan
      Poovayya, P.V. Surendra Nath, Neeraj Kishan Kaul, Sr. Advs., Jaideep
      Singh, Anirben Sen, Gopal Thiruman, Pavan Bhushan, Jayavardhan Singh,
      Ms. Vaidruti Mishra, Ms. Chitrangada R., Vishwajeet Singh, Hitesh Saini,
      Vivek Raja, Anish Kumar Gupta, Avdhesh Kumar Singh, Ms. Harsha,
G     Mrs. Rita Gupta, Ms. Deepshikha Bharati, Mrs. Geetha Kovilan, Rahul
      Narayan, Ms. Ananya Ghosh, Ms. Bhabna Das, Ms. Vrinda Bhandari,
      Gautam Bhatia, N. Sai Vinod, (for Mr. Shadan Farasat, Adv.) Pratap
      Venugopal, Ms. Surekha Rmaan, Prasanna S., Udayaditya Banerjee,
      Ms. Niharika, Ms. Kanika Kalaiyarasan, ( for M/s. K.J. John and Co.),
H     M/s. Meharia & Company, Ms. Jyoti Mendiratta Abhishek Atrey,
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                       131


Ms. Vidyottma, Pavan Bhushan, Jayavardhan Singh, Ms. Hima                 A
Lawrence, Hitesh Saini, Ms. Talha Rahman, Prateek Chadha, Vivek
Raja, Atin, Ms. Archana Pathak Dave, Muhammad Ali Khan,
Vikramaditya, R.V. Prabhat, Rajesh Inamdar, Gaurav Gupta, Abhishek
Jebraj, Omar Hoda, Jaspal Singh, Ms. Prianka Rao Khan, Namrah Nasir,
Zafar Khurshid, Gautam Talukdar, Prashant Bhushan, Vipin Nair,
                                                                          B
P. B. Suresh, Ms. Samiksha Godiyal, Abhay Pratap Singh,V. K. Biju,
Prithu Garg, Ms. Kritika Bhardwaj, Bhanu Pratap Singh, Pranaya Kumar
Mohapatra, Suhaan Mukerji, Ms. Astha Sharma, Vishal Prasad, Amjid
Maqbool, Amit Verma (for PLR Chambers & Co.), Ms. Priyam Lizmary
Cherian, Ms. Nehmat Kaur, Ms. Stuti Vatsa, Varun Mathew, Ms. Upasana
Garnaik, Anando Mukherjee, Ms. Pragya Baghel, Apar Gupta, Deepayan        C
Mandal, Rahul Unnikrishnan, N. Sai Vinod (for T.V.S. Raghavendra
Sreyas, Adv.) Zoheb Hossain, Ankur Talwar, Ms. Shraddha Deshmukh,
Ms. Chavanya L., Rohit Bhat, Rajat Nair, Ms. Adeeba Mujahid, Kanu
Aggarwal, Rajendra Dangwal, Piyush Goyal, Palash Maheshwari, Vivek
Gurnani, Ms. Priyanka Walesha, Ms. Aarti Sharma, Santosh Kr.
                                                                          D
Vishwakarma, S.S. Shamshery, Ms. Shardha Deshmukha, Zoheb
Hossain, R. Bala Subramaniyam, Raj Bahadur, Harish V. Shenkar,
Ms. Rukmini Bobde, Ms. Shradha Deshmukh (for M.K. Maroria, Adv.),
Ms. Sansriti Pathak, Ms. Sansriti Pathak (for Ms. Hemantika Wahi,
Adv.) Varinder Kumar Sharma, V. G. Pragasam, S. Prabu
Ramasubramanian, Sanjay Kapur, Ms. Mansi Kapur, Ms. Megha                 E
Karnwal, Ms. Shubhra Kapur, Gopal Sankaranarayanan, Ms. Savita
Singh, Shrutanjay Bhardwaj, Ms. Veera Mahuli, Ms. Ruchi Kohli, Ranjan
Mukherjee, K.V. Kharlyngdoh, Daniel Stone Lyngdoh, Zoheb Hossain,
Nishant Ramakantrao Katneshwarkar, Mishra Saurabh, Manish
Vashishtha, Jayant Mohan, Jagjit Singh Chhabra, Harish Pandey, Garvesh
                                                                          F
Kabra, Ms. Sauya Mehrotra, Anip Sachthey, Mrs. Anil Katiyar, Guntur
Prabhakar, Ms. Prerna Singh, Abhinav Mukerji, Satish Kumar, Shivam
Kumar, Sanjay Kumar Visen, Tapesh Kumar Singh, Aditya Pratap Singh,
Mohd. Waquas, Jayesh Gaurav, Ratan Kr. Choudhuri, M. Shoeb Alam,
Ms. Fauzia Shakil, Ujjwal Singh, Mojahid Karim Khan, Ms. Anitha Shenoy,
Aniruddha P. Mayee, T.G. Narayanan Nair, M/s. Arputham Aruna and          G
Co., Jatinder Kumar Bhatia, Ashutosh Kumar Sharma, Suhaan Mukerji,
Vishal Prasad, Shuvodeep Roy, K.V. Vijayakumar, Ms. Maitreyee Mishra,
Ms. Kiran Karan Chawla, Milind Kumar, Ms. Aishwarya Bhati,
Ms. Rashmi Singhania, Gopal Singh, Dinkar Kalra, Mohit D. Ram,
Kuldeep S. Parihar, H.S. Parihar, S. Udaya Kumar Sagar, Mrityunjai
                                                                          H
132            SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A     Singh, Wills Mathews (for Mr. Rabin Majumder), Jogy Scaria,
      M/s. Meharia & Co., M.P. Vinod, Ms. Nina Gupta, Ms. Shereen Shukla,
      Mudit Sharma, Harsh Kaushik, M/s. Khaitan & Co., K.R. Sasiprabhu,
      Chanchal Kumar Ganguli, Nishe Rajen Shonker, Ms. Anu K. Joy, Manav
      Vohra, Krishna Dev J., Mohammed Sadique T.A., Ms. Svadha Shankar,
      Amith Krishna, Anwar Alim, Joseph Aristotle S., Mrs. Priya Aristotle,
B
      Javedur Rehman, Aditya Bhat, Karan Bharihoke, Bhupesh Narula,
      K.V. Jagdishvaran, Mrs. G. Indira, Mrs. K. Enatoli Sema, Edward Belho,
      Amit Kumar Singh, K. Luikang Michael, Leisangthem Roshmani Kh.,
      Ms. Maibam Babina, Ajay Bansal, Kuldip Singh, Gaurav Yadava, Mahesh
      Agarwal, Priyadarshi Banerjee, Pratibhanu Singh Kharola, Saransh
C     Kumar, Saransh Jain, Madhavam Sharma, Meka Venkata Rama Krishna,
      Vivek Jain (for Mr. E.C. Agrawala), Ms. Rasmita R. Chandra,
      Ms. Lekha Sudhakaran, Nipun Saxena, Namit Saxena, Devanshu Sajlan,
      Aditya P. Arora, Ms. Pallavi Pratap, Ms. Bina Madhavan, Ms. Shreyasi
      Kunwar (for M/s. Lawyer S Knit & Co.) Sriram P., Ms. Khushbu Jain,
      Vishnu Shankar M.S., Ms. Athira G. Nair, Rahul Matthan, Syed Jafar
D
      Alam, Ms. Shivani Khandekar, Thomas J. Vallianeth, Samar Kacchwaha,
      B. Vivekananda, Ashok Mathur, R. Sudhinder, Ms. Saumya Mehrotra,
      Ms. Amrita Sarkar, S. Mukherjee, Manoj K. Mishra, Umesh Dubey,
      Ashish Kumar Mishra, Ms. Radhika Chaturvedi, Hitesh Kumar Sharma,
      S.K. Rajora (for Dr. (Mrs.) Vipin Gupta) Ms. Pooja Dhar, K. Rajeev,
E     Fuzail Ahmad Ayyubi, Ms. Deepali, Ibaad Mushtaq, Ms. Aditi Gupta,
      Jawad Tariq, Dr. Anindita Pujari, Ms. Kavita Bhardwaj, Pukhrambam
      Ramesh Kumar, Ms. Aparna Bhat, Mayank Sapra, Dr. Lalit Bhasin, Sai
      Krishna Rajgopala, Julien George, Ms. Arundhati Gopal, Arjun
      Ranganathan and Ms. Vaneesha Jain (for Mr. Nikhil Nayyar), Advs.,
      for the appearing parties.
F
            Sameer H. Shahani (In-person in Conmt. Petition (C) No. 34 of
      2018 in W.P. (C) NO. 1014 of 2017).
            The following Judgments of the Court were delivered by
           A. K. SIKRI, J. (For Chief Justice, himself and
G     A. M. Khanwilkar, J.)
            Introduction and Preliminaries:
            It is better to be unique than the best. Because, being
            the best makes you the number one, but being unique
            makes you the only one.
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            133
                     [A. K. SIKRI, J.]

        2. ‘Unique makes you the only one’ is the central message of            A
Aadhaar, which is on the altar facing constitutional challenge in these
petitions. ‘Aadhaar’ which means, in English, ‘foundation’ or ‘base’,
has become the most talked about expression in recent years, not only in
India but in many other countries and international bodies. A word from
Hindi dictionary has assumed secondary significance. Today, mention
                                                                                B
of the word ‘Aadhaar’ would not lead a listener to the dictionary meaning
of this word. Instead, every person on the very mentioning of this word
‘Aadhaar’ would associate it with the card that is issued to a person
from where he/she can be identified. It is described as an ‘Unique
Identity’ and the authority which enrols a person and at whose behest
the Aadhaar Card is issued is known as Unique Identification Authority          C
of India (hereinafter referred to as ‘UIDAI’ or ‘Authority’). It is
described as unique for various reasons. UIDAI claims that not only it
is a foolproof method of identifying a person, it is also an instrument
whereby a person can enter into any transaction without needing any
other document in support. It has become a symbol of digital economy
                                                                                D
and has enabled multiple avenues for a common man. Aadhaar scheme,
which was conceptualised in the year 2006 and launched in the year
2009 with the creation of UIDAI, has secured the enrolment of almost
1.1 billion people in this country. Its use is spreading like wildfire, which
is the result of robust and aggressive campaigning done by the
Government, governmental agencies and other such bodies. In this way            E
it has virtually become 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       F
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            G
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
                                                                                H
134             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     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 Aadhaar got a
      shield of statutory cover, challenge persists as the very enactment known
      as Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits
      and Services) Act, 2016 (hereinafter referred to as the ‘Aadhaar Act’)
B
      is challenged as constitutionally impermissible. The wide range of issues
      involved in this case is evident from the fact that it took almost four
      months for the parties to finish their arguments in these cases, and the
      Court witnessed highly skilled, suave, brilliant and intellectual advocacy,
      with the traces of passions as well.
C             4. The issue has generated heated public debate as well. Even
      outside the Court, there are groups advocating in favour of the Aadhaar
      scheme and those who are stoutly opposing the same. Interestingly, it is
      not only the commoners who belong to either of the two groups but
      intelligentsia is also equally divided. There have been number of articles,
D     interviews for discourses in favour of or against Aadhaar. Those in
      favour see Aadhaar project as ushering the nation into a regime of good
      governance, advancing socio-economic rights, economic prosperity etc.
      and in the process they claim that it may make the nation a world leader.
      Mr. K.K. Venugopal, learned Attorney General for India, referred to the
      commendations by certain international bodies, including the World Bank.
E     We clarify that we have not been influenced by such views expressed
      either in favour or against Aadhaar. Those opposing Aadhaar are
      apprehensive that it may excessively intrude into the privacy of citizenry
      and has the tendency to create a totalitarian state, which would impinge
      upon the democratic and constitutional values. Some such opinions of
F     various persons/bodies were referred to during the arguments.
      Notwithstanding the passions, emotions, annoyance, despair, ecstasy,
      euphoria, coupled with rhetoric, exhibited by both sides in equal measure
      during the arguments, this Court while giving its judgment on the issues
      involved is required to have a posture of calmness coupled with objective
      examination of the issues on the touchstone of the constitutional provisions.
G
             5. Initiative in spearheading the attack on the Aadhaar structure
      was taken by the petitioners, namely, Justice K.S. Puttaswamy (Retd.)
      and Mr. Pravesh Khanna, by filing Writ Petition (Civil) No. 494 of 2012.
      At that time, Aadhaar scheme was not under legislative umbrella. In the
      writ petition the scheme has primarily been challenged on the ground
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          135
                     [A. K. SIKRI, J.]

that it violates fundamental rights of the innumerable citizens of India,     A
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
                                                                              B
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         C
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         D
Information Technology, Ministry of Communications and Information
Technology, Government of India for the project titled ‘Unique
Identification for BPL Families’ to be implemented by the National
Informatics Centre (NIC) for over a period of twelve months. As a
result, a Processes Committee was set up on July 03, 2006 to suggest          E
the process for updation, modification, addition and deletion of data and
fields from the core database to be created under the Unique Identification
for BPL Families project. This Committee, on November 26, 2006,
prepared a paper known as ‘Strategic Vision Unique Identification of
Residents’. Based thereupon, the Empowered Group of Ministers
(EGoM) was set up on December 04, 2006, to collate the National               F
Population Register under the Citizenship Act, 1955 and the Unique
Identification Number project of the Department of Information
Technology. The EGoM was also empowered to look into the
methodology and specific milestones for early and effective completion
of projects and to take a final view on these projects. The EGoM was          G
composed of the then Ministers of External Affairs, Home Affairs, Law,
Panchayati Raj and Communications and Information Technology and
the then Deputy Chairman, Planning Commission.
       8. Various meetings on the Unique Identification (hereinafter
referred to as ‘UID’) project were held from time to time. In the fourth      H
136            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     meeting held on December 22, 2006, various aspects of proposed data
      elements and their formats were discussed. Thereafter, in its fifth meeting
      held on April 27, 2007, it was decided that the evolution of UID database
      would be in three stages in principle. The Committee further decided
      that linkage with major partner databases such as Household Survey of
      RD and the individual State Public Distribution System (PDS) databases
B
      should be taken up in a phased manner. On June 11, 2007, at the final
      stage of the project, a presentation on the UID project was made to the
      then Prime Minister by the Cabinet Secretary. The sixth meeting of the
      UID project was held on June 15, 2007. The Committee, inter alia,
      took the following decisions:
C           (i) The numbering format of 11 digits was approved.
            (ii) The need for UID authority to be created by an executive
            order under the aegis of the Planning Commission was appreciated
            in order to ensure pan-departmental and neutral identity for the
            authority.
D
            (iii) 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
E           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
F     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:
G           (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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            137
                     [A. K. SIKRI, J.]

      mechanism that would ‘own’ the database and be responsible for            A
      its maintenance and updating.
      (iii) The next meeting is to consider topics relating to collating the
      National Population Register (NPR) and UID schemes, including
      methodology, effective implementation techniques, identification
      of the institutional mechanism stated above, and the time schedule        B
      for putting the scheme into operation.
      A series of meetings took place thereafter to work out the
      modalities of the programme. Certain issues were raised therein
      and to address those issues, a Committee of Secretaries was
      formed. The said Committee gave its recommendations which                 C
      were discussed by EGoM. After approving the Aadhaar Scheme
      in principle, it instructed the Cabinet Secretary to convene a
      meeting to finalise the detailed organisational structure of the UID.
       10. After considering the recommendation of the Cabinet Secretary,
Notification No. A-43011/02/2009-Admn.I was issued on January 28,               D
2009 by the Government of India which constituted and notified the
UIDAI as an attached office under the aegis of the Planning Commission.
Consequent to the constitution of UIDAI, allocation of Rs.147.31 crores
for Phase I of Aadhaar enrolments was approved by the Finance Minister
on the recommendation of the Standing Committee on Finance. Demo-
Official letter dated February 25, 2009, was sent by the Secretary,             E
Planning Commission to all Chief Secretaries of 35 States/Union
Territories apprising them of their roles and responsibilities of the States/
Union Territories in implementation of UIDAI, such as appointment of
the State/UT UID Commissioners, logistics support and coordination
with various departments and State units.                                       F
      As they say, rest is history, which we recapitulate in brief
hereinafter.
        11. A core group was set up to advice and further the work related
to UIDAI. Budgets were allocated to UIDAI to enable it to undertake
its task. Staff was also allocated to it. Meetings of the core group took       G
place from time to time. The core group, inter alia, decided that it was
better to start with the electoral roll database of 2009 for undertaking
the UIDAI project. The status of digitisation of PDS records, state-
wise, was sought to be sent from the Department of Food and Public
Distribution to the Standing Commission/UID. This and other steps taken
                                                                                H
138             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     in this direction culminated in issuance of Notification dated July 02,
      2009 whereby Mr. Nandan Nilekani was appointed as the Chairman of
      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
B
      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
C     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
D
      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. In this report, the Finance Commission suggested targeting of
      subsidies through UIDAI. By April 2010, UIDAI came out with its
E     Strategy Overview. This Overview describes the features, benefits,
      revenue model and timelines of the UIDAI project. Furthermore, it
      outlined the goal of the UID to serve as a universal proof of identity,
      allowing residents to prove their identities anywhere in the country. The
      project would give the Government a clear view of India’s population,
F     enabling it to target and deliver services effectively, achieve greater
      returns on social investments and monitor money and resource flows
      across the country. It was felt that crucial to the achievement of this
      goal is the active participation of the central, state and local Governments
      as well as public and private sector entities. Only with their support will
      the project be able to realise a larger vision of inclusion and development
G     in India.
            13. A Cabinet Note bearing No. 4(4)/57/2010/CC-UIDAI for the
      Cabinet Committee on UIDAI was submitted on May 12, 2010. The
      Note outlined a brief background of UIDAI, proposed an approach for
      collection of demographic and biometric attributes of residents for the
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          139
                    [A. K. SIKRI, J.]

UID project and sought approval of the Cabinet Committee for adoption        A
of the aforesaid approach and suggested that the same standards and
processes be adhered to by the Registrar General of India for the NPR
exercise and all other Registrars in the UID system. Rationale for
inclusion of iris biometrics was also submitted with the aforesaid Cabinet
Note to explain the need for capturing iris scans at the time of capturing
                                                                             B
biometric details.
       14. By September 2010 enrolment process of Aadhaar began with
the nationwide launch of the Aadhaar project. In December 2010, UIDAI
came out with a report on enrolment process known as ‘UID Enrolment
Proof-of-Concept Report’ studying enrolment proof-of-concept in three
rural areas of Karnataka, Bihar and Andhra Pradesh published by the          C
UIDAI. According to this report, ‘the biometric matching analysis of
40,000 people showed that the accuracy levels achieved by both iris and
ten fingerprints were more than an order of magnitude better compared
to using either of the two individually. The multi-modal enrolment was
adequate to carry out de-duplication on a much larger scale, with            D
reasonable expectations of extending it to all residents of India’.
      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’.                                              E
       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/               F
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:                                             G
      (i) Report of the Task Force on an Aadhaar-Enabled Unified
      Payment Infrastructure for the direct transfer of subsidies on
      Kerosene, LPG and Fertilizer.

                                                                             H
140            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           (ii) In March 2012, Fingerprint Authentication Report was
            submitted to UIDAI. This Report showcased the high accuracy
            rates of using fingerprints to authenticate identities. The study
            conducted in the rural setting representing typical demography of
            the population established that it is technically possible to use
            fingerprint to authenticate a resident in 98.13% of the population.
B
            The accuracy of 96.5% can be achieved using one best finger
            and 99.3% can be achieved using two fingers. Further
            improvement is possible if the device specifications are tightened
            to include only the best devices and certain mechanical guide is
            used to aid proper placement of the finger. It was also
C           demonstrated through benchmarking that the authentication
            infrastructure is able to sustain one million authentications per
            hour.
            (iii) Fifty Third Report of the Standing Committee on Finance on
            the ‘Demands for Grants (2012-13)’ of the Ministry of Planning
D           was presented to the Lok Sabha and Rajya Sabha on April 24,
            2012. This Report summarises the objectives and financial
            implications of the UID scheme being implemented under the aegis
            of the Planning Commission.
            (iv) Iris Authentication Accuracy Report was submitted to UIDAI
E           on September 12, 2012. This Report based on an empirical study
            of 5833 residents demonstrated iris authentication to be viable in
            Indian context. With current level of device readiness for iris
            capture, it is capable of providing coverage for 99.67% of population
            with authentication accuracy of above 99.5%. Suggestions made
            in this document for the vendors, once implemented, will improve
F           the rates further. The overall systems – network and software –
            have shown to meet desired requirements in real life condition.
            Finally, six different devices with variety of form and function are
            available to provide competitive vendor eco-system.
            (v) Background Note on Introduction to Cash Transfers was
G           prepared by the National Committee on Direct Cash Transfers in
            its first meeting on November 26, 2012. This Report outlines the
            advantages of cash transfers in the Indian context stating that a
            unique ID for all is a prerequisite for this purpose.
             17. At this juncture, Writ Petition (Civil) No. 494 of 2012 was
H     filed in which show-cause notice dated November 30, 2012 was issued
    JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          141
                       [A. K. SIKRI, J.]

by this Court. As pointed out above, this writ petition assailed Aadhaar        A
scheme primarily on the ground that it violates right to privacy which is
a facet of fundamental rights 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              B
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 Others 1 . 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.             C
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          D
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 rights which
can be traced to Articles 14, 19 and 21 of the Constitution of India.           E
       19. We may also record at this stage that in this petition certain
interim orders were passed from time to time. We may give the gist of
some of the relevant orders:
        (a) Order dated September 23, 2013 (two Judge Bench)
                                                                                F
           “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 in spite of the fact that some authority had issued
           a circular making it mandatory and when any person applies to
                                                                                G
           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.”


1
    1954 SCR 1077                                                               H
142      SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     (b) Order dated November 26, 2013 (two Judge Bench)
         “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
B        counsel.
                     xx                xx            xx
      Interim order to continue, in the meantime.”
      (c) Order dated March 16, 2015 (three Judge Bench)
         “In the meanwhile, it is brought to our notice that in certain
C        quarters, Aadhaar identification is being insisted upon by the
         various authorities, we do not propose to go into the specific
         instances.
         Since Union of India is represented by learned Solicitor General
         and all the States are represented through their respective
D        counsel, we expect that both the Union of India and States and
         all their functionaries should adhere to the order passed by this
         Court on 23rd September, 2013.”
      (d) Order dated August 11, 2015 (three Judge Bench)
         “Having considered the matter, we are of the view that the
E        balance of interest would be best served, till the matter is finally
         decided by a larger Bench, if the Union of India or the UIDAI
         proceed in the following manner:
         1. 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.
F
         2. The production of an Aadhaar card will not be condition for
         obtaining any benefits otherwise due to a citizen.
         3. 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
G        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
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      143
                   [A. K. SIKRI, J.]

     shall not be used for any other purpose, save as above, except     A
     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          B
     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         C
     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.
                                                                        D
     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   E
     is finally decided by this Court one way or the other.”
   (e) Order dated September 14, 2016 in WP (C) No. 686/2016
     “Having regard to the facts and circumstances of the case, the
     material evidence available on record and the submissions made
     by learned senior counsel, we stay the operation and               F
     implementation of letters dated 14.07.2006 (i.e. Annexure P-5,
     P-6, P-7) for Pre-Matric Scholarship Scheme, Post-Matric
     Scholarship Scheme and Merit-cum-Means Scholarship Scheme
     to the extent they have made submission of Aadhaar mandatory
     and direct the Ministry of Electronics and Information
                                                                        G
     Technology, Government of India, i.e. respondent No.2, to
     remove Aadhaar number as a mandatory condition for student
     registration form at the National Scholarship Portal of Ministry
     of Electronics and Information Technology, Government of India
     at the website...”
                                                                        H
144              SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A            20. It is also relevant to point out that against an order passed by
      the High Court of Bombay at Panaji, in some criminal proceedings,
      wherein the Authority was directed to pass on biometric information on
      a person, UIDAI had filed Special Leave Petition (Criminal) No. 2524
      of 2014 challenging the said order with the submission that such a direction
      for giving biometric information was contrary to the provisions of the
B
      Aadhaar Act and the Authority was not supposed to give such an
      information, which was confidential. In the said special leave petition,
      order dated March 24, 2014 was passed staying the operation of the
      orders of the Bombay High Court. This order reads as under:
              “Issue notice.
C
              In addition to normal mode of service, dasti service, is permitted.
              Operation of the impugned order shall remain stayed.
              In the meanwhile, the present petitioner is restrained from
              transferring any biometric information of any person who has been
D             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
E             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.”
F
             21. Likewise, in Writ Petition (Civil) No. 1002 of 2017 titled Dr.
      Kalyan Menon Sen v. Union of India and Others, 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
G     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 & Ors.2, wherein various directions were given to ensure
H     2
          (2011) 14 SCC 331
    JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          145
                       [A. K. SIKRI, J.]

effective implementation of the PDS Scheme and in the process to also           A
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 strategy for the
PDS. Mr. Nilekani was requested to suggest ways and means by which
                                                                                B
computerization process of the PDS can be expedited. Computerisation
of PDS system was directed to be prepared and in this hue the process
of computerisation with Aadhaar registration was also suggested.
        In the same very case above, which also pertained to providing
night shelters to homeless destitute persons, some orders were passed
on February 10, 20103 as well as on September 14, 20114.                        C

       23. Again, in the case of State of Kerala & Ors. v. President,
Parent Teachers Association SNVUP School and Ors.5, where the
Court was concerned with the problem of fake or bogus admissions, it
was felt that instead of involving the Police in schools to prevent fake
admissions, more appropriate method of verification would be Unique             D
Identification (UID) card as means of verification.
       Architecture of the Aadhaar Project and the Aadhaar Act:
       24. Before adverting to the discussion on various issues that have
been raised in these petitions, it would be apposite to first understand the    E
structure of the Aadhaar Act and how it operates, having regard to various
provisions contained therein. UIDAI was established in the year 2009
by an administrative order i.e. by resolution of the Govt. of India, Planning
Commission, vide notification dated January 28, 2009. The object of the
establishment of the said Authority was primarily to lay down policies to
implement the Unique Identification Scheme (for short the ‘UIS’) of the         F
Government, by which residents of India were to be provided unique
identity number. The aim was to serve this as proof of identity, which is
unique in nature, as each individual will have only one identity with no
chance of duplication. Another objective was that this number could be
used for identification of beneficiaries for transfer of benefits, subsidies,   G
services and other purposes. This was the primary reason, viz. to ensure
correct identification of targeted beneficiaries for delivery of various
subsidies, benefits, services, grants, wages and other social benefits
3
  (2010) 5 SC 318
4
  (2010) 13 SCC 45
5
  (2013) 2 SCC 705                                                              H
146             SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     schemes which are funded from the Consolidated Fund of India. It was
      felt that the identification of real and genuine beneficiaries had become
      a challenge for the Government. In the absence of a credible system to
      authenticate identity of beneficiaries, it was becoming 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
B
      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
C     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
D
      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
E            a resolution of the Government of India in 2009. It was meant
             primarily to lay down policies and to implement the Unique
             Identification Scheme, by which residents of India were to be
             provided unique identity number. This number wold serve as proof
             of identity and could be used for identification of beneficiaries for
             transfer of benefits, subsidies, services and other purposes.
F
             Later on, it was felt that the process of enrollment, authentication,
             security, confidentiality and use of Aadhaar related information
             be made statutory so as to facilitate the use of Aadhaar number
             for delivery of various benefits, subsidies and services, the
             expenditures of which were incurred from or receipts therefrom
G            formed part of the Consolidated Fund of India.
             The Aadhaar (Targeted Delivery of Financial and Other Subsidies,
             Benefits and Services) Bill, 2016 inter alia, provides for
             establishment of Unique Identification Authority of India, issuance
             of Aadhaar number to individuals, maintenance and updating of
H            information in the Central Identities Data Repository, issues
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                         147
                    [A. K. SIKRI, J.]

      pertaining to security, privacy and confidentiality of information    A
      as well as offences and penalties for contravention of relevant
      statutory provisions.”
      26. After mentioning the reasons recorded above, Statement of
Objects and Reasons for introducing the Bill also highlight the salient
features thereof in the following manner:                                   B
      “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    C
      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;                                           D
      (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-
                                                                            E
      Secretary to perform functions in pursuance of the objectives
      above;
      (e) maintenance and updating the information of individuals in
      the Central Identities Data Repository in such manner as may be
      specified by regulations;
                                                                            F
      (f) measures pertaining to security, privacy and confidentiality 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.”                                                          G
      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:
                                                                            H
148             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A            “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”
B
             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
C            an individual under sub-section (3) of Section 3;
             (b) “Aadhaar number holder” means an individual who has been
             issued an Aadhaar number under this Act;
             (c) “authentication” means the process by which the Aadhaar
             number along with demographic information or biometric
D            information of an individual is submitted to the Central Identities
             Data Repository for its verification and such Repository verifies
             the correctness, or the lack thereof, on the basis of information
             available with it;
             (d) “authentication record” means the record of the time of
E            authentication and identity of the requesting entity and the response
             provided by the Authority thereto;
                        xx                xx                xx
             (f) “benefit” means any advantage, gift, reward, relief, or payment,
             in cash or kind, provided to an individual or a group of individuals
F
             and includes such other benefits as may be notified by the Central
             Government;
             (g) “biometric information” means photograph, finger print, Iris
             scan, or such other biological attributes of an individual as may be
             specified by regulations;
G
             (h) “Central Identities Data Repository” means 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 information related thereto;
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                        149
                   [A. K. SIKRI, J.]

             xx               xx                xx                        A
   (j) “core biometric information” means finger print, Iris scan, or
   such other biological attribute of an individual as may be specified
   by regulations;
   (k) “demographic information” includes information relating to
   the name, date of birth, address and other relevant information of     B
   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;
   (l) “enrolling agency” means an agency appointed by the Authority      C
   or a Registrar, as the case may be, for collecting demographic
   and biometric information of individuals under this Act;
   (m) “enrollment” 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       D
   Aadhaar numbers to such individuals under this Act;
   (n) “identity information” in respect of an individual, includes his
   Aadhaar number, his biometric information and his demographic
   information;
                                                                          E
             xx               xx                xx
   (r) “records of entitlement” means records of benefits, subsidies
   or services provided to, or availed by, any individual under any
   programme;
             xx               xx                xx                        F
   (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      G
   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         H
150             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           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
B           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. As
      noted above, demographic information includes information relating to
C     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’. Photograph, fingerprint, iris scan, ‘or such other
      biological attribute of an individual as may be specified by regulations’
      are treated as biometric information. Sub-section (2) of Section 3
      stipulates that the enrolling agency shall, at the time of enrolment, inform
D     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
E     to be shared during authentication; and
            (c) the existence of a right to access information, the procedure
      for making requestes for such access, and details of the person or
      department in-charge to whom such requests can be made.
             30. Section 4, inter alia, provides that Aadhaar number issued to
F     an individual shall not be reassigned to any individual. In this sense, it
      makes an Aadhaar number given to a particular individual ‘unique’.
      Section 5 delineates special measures for issuance of Aadhaar number
      to certain categories of persons and reads as under:
            “5. Special measures for issuance of Aadhaar number to
G           certain category of persons.— The Authority shall take special
            measures to issue Aadhaar number to women, children, senior
            citizens, persons with disability, unskilled and unorganised workers,
            nomadic tribes or to such other persons who do not have any
            permanent dwelling house and such other categories of individuals
            as may be specified by regulations.”
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             151
                     [A. K. SIKRI, J.]

       32. Chapter III deals with ‘authentication’, which has generated          A
the maximum debate in these proceedings. Section 7 falling under this
Chapter mandates that proof of Aadhaar number would be necessary
for receipt of certain subsidies, benefits and services etc. meaning thereby
for availing such subsidies, benefits and services, it would be necessary
for the intended beneficiary to possess Aadhaar number. In case of an
                                                                                 B
individual to whom no Aadhaar number has been assigned, he/she would
be required to 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              C
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
                                                                                 D
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               E
      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           F
      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     G
      of identification for delivery of the subsidy, benefit or service.
      8. Authentication of Aadhaar number.— (1) The Authority
      shall perform authentication of the Aadhaar number of an Aadhaar

                                                                                 H
152            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A           number holder submitted by any requesting entity, in relation to
            his biometric information or demographic information, subject to
            such conditions and on payment of such fees and in such manner
            as may be specified by regulations.
            (2) A requesting entity shall—
B           (a) unless otherwise provided in this Act, obtain the consent of an
            individual before collecting his identity information for the purposes
            of authentication in such manner as may be specified by
            regulations; and
            (b) ensure that the identity information of an individual is only
C           used for submission to the Central Identities Data Repository for
            authentication.
            (3) A requesting entity shall inform, in such manner as may be
            specified by regulations, the individual submitting his identity
            information for authentication, the following details with respect
D           to authentication, namely—
            (a) the nature of information that may be shared upon
            authentication;
            (b) the uses to which the information received during authentication
            may be put by the requesting entity; and
E
            (c) alternatives to submission of identity information to the
            requesting entity.
            (4) The Authority shall respond to an authentication query with a
            positive, negative or any other appropriate response sharing such
F           identity information excluding any core biometric information.”
             33. Under Section 10, the Authority is given power to engage one
      or more entities to establish and maintain the CIDR and to perform any
      other functions as may be specified by regulations.
             34. Chapter IV deals with the Establishment of the Authority. As
G     per Section 11, the Central Government, by notification, shall establish
      an Authority to be known as the Unique Identification Authority of India.
      Notification dated July 12, 2016 was issued by the Central Government
      establishing the Authority. Other provisions in this Chapter deal with the
      composition of the Authority, qualifications for appointment of the
H     Chairperson and Members of Authority; term of their office and their
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          153
                     [A. K. SIKRI, J.]

removal; and restrictions on their employment after cessation of office.      A
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            B
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    C
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 this Act and regulations made thereunder, is treated as
‘electronic record’ and ‘sensitive personal data or information’ by virtue    D
of Section 30 of the Act. As these are very material and significant
provisions of the Act, the same are reproduced verbatim in their entirety:
      “28. Security and confidentiality of information.— (1) The
      Authority shall ensure the security of identity information and
      authentication records of individuals.                                  E

      (2) Subject to the provisions of this Act, the Authority shall ensure
      confidentiality of identity information and authentication records
      of individuals.
      (3) The Authority shall take all necessary measures to ensure           F
      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 access, use or
      disclosure not permitted under this Act or regulations made
      thereunder, and against accidental or intentional destruction, loss
      or damage.                                                              G
      (4) Without prejudice to sub-sections (1) and (2), the Authority
      shall—
      (a) adopt and implement appropriate technical and organisational
      security measures;
                                                                              H
154      SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     (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
B     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.
      29. Restriction on sharing information.— (1) No core
C     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.
D
      (2) The identity information, other than core biometric information,
      collected or created under this Act may be shared only in
      accordance with the provisions of this Act and in such manner as
      may be specified by regulations.
      (3) No identity information available with a requesting entity shall
E
      be—
      (a) used for any purpose, other than that specified to the individual
      at the time of submitting any identity information for authentication;
      or
F     (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
G     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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             155
                     [A. K. SIKRI, J.]

       “sensitive personal data or information”, and the provisions              A
       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—           B
       (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 the same meaning as assigned
       to it in clause (t) of sub-section (1) of Section 2 of the Information    C
       Technology Act, 2000 (21 of 2000);
       (c) “sensitive personal data or information” shall have the same
       meaning as assigned to it in clause (iii) of the Explanation to Section
       43-A of the Information Technology Act, 2000 (21 of 2000).”
                                                                                 D
        37. Section 32 provides that the Authority shall maintain
authentication records in such manner and for such period as may be
specified by regulations and enables every Aadhaar number holder to
obtain his authentication record in such manner as may be specified by
regulations. This provision also puts an embargo upon the Authority to
collect, keep or maintain any information about ‘purpose of                      E
authentication’. Section 33, however, creates an exception to the
provisions of Section 28(ii) and (v) as well as Section 29(ii) by stipulating
that the information can be disclosed pursuant to an order of a court not
inferior to that of a District Judge. It also carves out another exception
in those cases where it becomes necessary to disclose the information            F
in the interest of national security in pursuance of a direction 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.
       38. Sections 34 to 47 in Chapter VII of the Act enumerate various
kinds of offences and provide penalties for such offences. For our
                                                                                 G
purposes, relevant Section is Section 37 which makes act of disclosing
identity information as offence which is punishable with imprisonment
for a term which may extend to three years or with a fine which may
extend to ten thousand rupees. In the case of a company, this fine can
extend to one lakh rupees. Likewise, Section 38 provides for penalty for
unauthorised access to the CIDR. Penalties for tampering with data in            H
156             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     CIDR (Section 39) and unauthorised use by requesting entity (Section
      40) are also stipulated.
             Cognizance of offences under this Chapter can be taken by a
      court only on a complaint made by the Authority or any officer or person
      authorised by it.
B           39. Section 50 of the Act empowers the Central Government to
      issue directions to the Authority in writing from time to time and the
      Authority shall be bound to carry out such directions on questions of
      policy. Section 53 empowers the Central Government to make rules to
      carry out the provisions of the Act generally as well as the specific
C     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.
D           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
E           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
F           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 make provisions to remove
      those difficulties, provided that such provisions are not inconsistent with
      the provisions of the Act. Section 59, which is the last provision in the
G
      Act, is an attempt to save all the acts and actions of the Central
      Government under Notification dated January 28, 2009 vide which the
      Authority was established or the Department of Electronics and
      Information Technology under the Cabinet Secretariat Notification dated
      September 12, 2015. This provision is couched in the following language:
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                         157
                    [A. K. SIKRI, J.]

      “59. Savings.— Anything done or any action taken by the Central       A
      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.
                                                                            B
      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.”
      42. 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)         C
Regulations, 2016; and (4) The Aadhaar (Sharing of Information)
Regulations, 2016. The relevant provisions in these Regulations are
reproduced below:
      “The Aadhaar (Enrolment and Update) Regulations, 2016
                                                                            D
      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;
                                                                            E
      (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        F
      undergoing enrolment:
      (i) Mobile number
      (ii) Email address

      (3) In case of Introducer-based enrolment, the following additional   G
      information shall be collected:
      (i) Introducer name;
      (ii)Introducer’s Aadhaar number.

                                                                            H
158      SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A     (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;
B     (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 include race, religion,
      caste, tribe, ethnicity, language, record of entitlement, income or
C     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—

D     (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).
E     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.
F     (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 Aadhaar number holder in the CIDR.
G     (b) One-time pin based authentication: A One Time Pin (OTP),
      with limited time validity, is sent to the mobile number and/ or e-
      mail address of the Aadhaar number holder registered with the
      Authority, or generated by other appropriate means. The Aadhaar
      number holder shall provide this OTP along with his Aadhaar
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                         159
                   [A. K. SIKRI, J.]

   number during authentication and the same shall be matched with         A
   the OTP generated by the Authority.
   (c) Biometric-based authentication: The Aadhaar number and
   biometric information submitted by an Aadhaar number holder
   are matched with the biometric information of the said Aadhaar
   number holder stored in the CIDR. This may be fingerprints-based        B
   or iris-based authentication or other biometric modalities based
   on biometric information stored in the CIDR.
   (d) Multi-factor authentication: A combination of two or more of
   the above modes may be used for authentication.
   (3) A requesting entity may choose suitable mode(s) of                  C
   authentication from the modes specified in sub-regulation (2) for
   a particular service or business function as per its requirement,
   including multiple factor authentication for enhancing security. For
   the avoidance of doubt, it is clarified that e-KYC authentication
   shall only be carried out using OTP and/ or biometric authentication.   D
             xx                xx               xx
   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        E
   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.
                                                                           F
   (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.
             xx                xx               xx
   9. Process of sending authentication requests.— (1) After               G
   collecting the Aadhaar number or any other identifier provided by
   the requesting entity which is mapped to Aadhaar number and
   necessary demographic and / or biometric information and/ or
   OTP from the Aadhaar number holder, the client application shall
   immediately package and encrypt these input parameters into PID
                                                                           H
160      SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     block before any transmission, as per the specifications laid down
      by the Authority, and shall 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
B     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.
C     (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.
D
      (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.

E     (5) A requesting entity shall ensure that encryption of PID Block
      takes place at the time of capture on the authentication device as
      per the processes and specifications laid down by the Authority.
                xx                xx                xx
      18. Maintenance of logs by requesting entity. — (1) A
F     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;
G
      (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
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          161
                   [A. K. SIKRI, J.]

   authentication, but shall not, in any event, retain the PID              A
   information.
   (2) The logs of authentication transactions shall be maintained by
   the requesting entity for a period of 2 (two) years, during which
   period an Aadhaar number holder shall have the right to access
   such logs, in accordance with the procedure as may be specified.         B
   (3) Upon expiry of the period specified in sub-regulation (2), the
   logs shall be archived for a period of five years or the number of
   years as required by the laws or regulations governing the entity,
   whichever is later, and upon expiry of the said period, the logs
   shall be deleted except those records required to be retained by a       C
   court or required to be retained for any pending disputes.
   (4) The requesting entity shall not share the authentication logs
   with any person other than the concerned Aadhaar number holder
   upon his request or for grievance redressal and resolution of disputes
   or with the Authority for audit purposes. The authentication logs        D
   shall not be used for any purpose other than stated in this sub-
   regulation.
   (5) The requesting entity shall comply with all relevant laws, rules
   and regulations, including, but not limited to, the Information
   Technology Act, 2000 and the Evidence Act, 1872, for the storage         E
   of logs.
   (6) The obligations relating to authentication logs as specified in
   this regulation shall continue to remain in force despite termination
   of appointment in accordance with these regulations.
             xx                xx                xx                         F
   26. Storage and Maintenance of Authentication Transaction
   Data. — (1) The Authority shall store and maintain authentication
   transaction data, which shall contain the following information:—
   (a) authentication request data received including PID block;
                                                                            G
   (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.                                                       H
162      SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A     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
B     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
C     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     (d) implementing controls to detect and protect against virus/
      malwares;
      (e) a change management process to ensure information security
      is maintained during changes;
      (f) a patch management process to protect information systems
E
      from vulnerabilities and security risks;
      (g) a robust monitoring process to identify unusual events and
      patterns that could impact security and performance of information
      systems and a proper reporting and mitigation process;
F     (h) encryption of data packets containing biometrics, and enabling
      decryption only in secured locations;
      (i) partitioning of CIDR network into zones based on risk and
      trust;
      (j) deploying necessary technical controls for protecting CIDR
G     network;
      (k) service continuity in case of a disaster;
      (l) monitoring of equipment, systems and networks;
      (m) measures for fraud prevention and effective remedies in case
H     of fraud;
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          163
                   [A. K. SIKRI, J.]

   (n) requirement of entering into non-disclosure agreements with          A
   the personnel;
   (o) provisions for audit of internal systems and networks; (p)
   restrictions on personnel relating to processes, systems and
   networks.
   (q) inclusion of security and confidentiality obligations in the         B
   agreements or arrangements with the agencies, consultants,
   advisors or other persons engaged by the Authority.
   (3) The Authority shall monitor compliance with the information
   security policy and other security requirements through internal
   audits or through independent agencies.                                  C

   (4) The Authority shall designate an officer as Chief Information
   Security Officer for disseminating and monitoring the information
   security policy and other security-related programmes and
   initiatives of the Authority.
                                                                            D
             xx                xx                xx
   5. Security obligations of service providers, etc. — The
   agencies, consultants, advisors and other service providers
   engaged by the Authority for discharging any function relating to
   its processes shall:
                                                                            E
   (a) ensure compliance with the information security policy specified
   by the Authority;
   (b) periodically report compliance with the information security
   policy and contractual requirements, as required by the Authority;
   (c) report promptly to the Authority any security incidents affecting    F
   the confidentiality, integrity and availability of information related
   to the Authority’s functions;
   (d) ensure that records related to the Authority shall be protected
   from loss, destruction, falsification, unauthorised access and
   unauthorised release;                                                    G
   (e) ensure confidentiality obligations are maintained during 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;
                                                                            H
164      SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     (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
B     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
C     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
D     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 requesting entity in response to an authentication
      request for e-KYC data pertaining to such individual, upon the
E     requesting entity obtaining consent from the Aadhaar number
      holder for the authentication process, in accordance with the
      provisions of the Act and the Aadhaar (Authentication)
      Regulations, 2016.
      (3) The Authority shall share authentication records of the Aadhaar
F     number holder with him in accordance with regulation 28 of the
      Aadhaar (Authentication) Regulations, 2016.
      (4) The Authority may share demographic information and
      photograph, and the authentication records of an Aadhaar number
      holder when required to do so in accordance with Section 33 of
G     the Act.
                xx               xx                xx
      6. Restrictions on sharing, circulating or publishing of
      Aadhaar number. — (1) The Aadhaar number of an individual
      shall not be published, displayed or posted publicly by any person
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              165
                     [A. K. SIKRI, J.]

      or entity or agency.                                                        A
      (2) Any individual, entity or agency, which is in possession of
      Aadhaar number(s) of Aadhaar number holders, shall ensure
      security and confidentiality of the Aadhaar numbers and of any
      record or database containing the Aadhaar numbers.
      (3) Without prejudice to sub-regulations (1) and (2), no entity,            B
      including a requesting entity, which is in possession of the Aadhaar
      number of an Aadhaar number holder, shall make public any
      database or record containing the Aadhaar numbers of individuals,
      unless the Aadhaar numbers have been redacted or blacked out
      through appropriate means, both in print and electronic form.               C
      (4) No entity, including a requesting entity, shall require an individual
      to transmit his Aadhaar number over the Internet unless such
      transmission is secure and the Aadhaar number is transmitted in
      encrypted form except where transmission is required for
      correction of errors or redressal of grievances.                            D
      (5) No entity, including a requesting entity, shall retain Aadhaar
      numbers or any document or database containing Aadhaar
      numbers for longer than is necessary for the purpose specified to
      the Aadhaar number holder at the time of obtaining consent.”
       43. To sum up broadly, the Authority is established under the Act          E
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           F
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          G
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
                                                                                  H
166             SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     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
B
      recipient would submit his Aadhaar number and is also required to give
      her biometric information to that agency. On receiving this information
      and for the purpose of its authentication, the said agency, known as
      Requesting Entity, would send the request to the Authority which shall
      perform the job of authentication of Aadhaar number. On confirming
C     the identity of a person, the individual is entitled to receive subsidy, benefit
      or service. Aadhaar number is permitted to be used by the holder for
      other purposes as well.
             44. In this whole process, any resident seeking to obtain an
      Aadhaar number is, in the first instance, required to submit her
D     demographic information and biometric information at the time of
      enrolment. She, thus, parts with her photograph, fingerprint and iris
      scan at that stage by giving the same to the enrolling agency, which may
      be a private body/person. Likewise, every time when such Aadhaar
      holder intends to receive a subsidy, benefit or service and goes to
E     specified/designated agency or person for that purpose, she would be
      giving her biometric information to that requesting entity, which, in turn,
      shall get the same authenticated from the Authority before providing a
      subsidy, benefit or service. Whenever request is received for
      authentication by the Authority, record of such a request is kept and
      stored in the CIDR. At the same time, provisions for protection of such
F     information/data have been made, as indicated above. Aadhaar number
      can also be used for purposes other than stated in the Act i.e. purposes
      other than provided under Section 7 of the Act, as mentioned in Section
      57 of the Act, which permit the State or any body corporate or person,
      pursuant to any law, for the time being in force, or any contract to this
      effect, to use the Aadhaar number for establishing the identity of an
G
      individual. It can be used as a proof of identity, like other identity proofs
      such as PAN card, ration card, driving licence, passport etc.
             45. Piercing into the aforesaid Aadhaar programme and its
      formation/structure under the Aadhaar Act, foundational arguments are
H     that it is a grave risk to the rights and liberties of the citizens of this
    JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           167
                       [A. K. SIKRI, J.]

country which are secured by the Constitution of India. It militates             A
against the constitutional abiding values and its foundational morality
and has the potential to enable an intrusive state to 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       B
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 & Anr. v.
Union of India & Ors.6. 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                C
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
                                                                                 D
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 information pertaining to an individual.
Further, it is argued that the most delicate and fragile part, susceptible to
misuse, is the authentication process which is to be carried out each
time the holder of Aadhaar number wants to establish her identity. At            E
that stage, not only the individual parts with the biometric information
again with the RE (which may again be a private agency as well), the
purpose for which such a person approaches the RE would also be
known i.e. the nature of transaction which is supposed to be undertaken
by the said person at that time. Such information relating to different
                                                                                 F
transactions of a person across the life of the citizen is connected to a
central database. This record may enable the State to profile citizens,
track their movements, assess their habits and silently influence their
behaviour. Over a period of time, the profiling would enable the State to
stifle dissent and influence political decision making. It may also enable
the State to act as a surveillant state and there is a propensity for it to      G
become a totalitarian state. It is stressed that at its core, Aadhaar alters
the relationship between the citizen and the State. It diminishes the
status of the citizen. Rights freely exercised, liberties freely enjoyed,
entitlements granted by the Constitution and laws are all made conditional,
6
    (2017) 10 SCC 1                                                              H
168             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     on a compulsory barter. The barter compels the citizen to give up her
      biometrics ‘voluntarily’, allow her biometrics and demographic information
      to be stored by the State and private operators and then used for a
      process termed ‘authentication’.
             To put it in nutshell, provisions of the Aadhaar Act are perceived
B     by the petitioners as giving away of vital information about the residents
      to the State not only in the form of biometrics but also about the movement
      as well as varied kinds of transactions which a resident would enter into
      from time to time. The threat is in the form of profiling the citizens by
      the State on the one hand and also misuse thereof by private agencies
C     whether it is enrolling agency or requesting agency or even private bodies
      mentioned in Section 57 of the Act. In essence, it is stated that not only
      data of aforesaid nature is stored by the CIDR, which has the threat of
      being leaked, it can also be misused by non-State actors. In other words,
      it is sought to be highlighted that there is no assurance of any data
      protection at any level.
D
             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
E     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
F     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
G     information is received or stored in respect of purpose, location or nature
      or transaction etc. Therefore, the question of profiling does not arise at
      all. A powerpoint presentation was given by Dr. Ajay Bhushan Pandey,
      CEO of the Authority, in the Court, while explaining various nuances of
      the whole process. In this presentation, the enrolment process has been
H     projected in the following manner:
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA   169
                   [A. K. SIKRI, J.]

                                                     A




                                                     B




                                                     C




                                                     D




                                                     E




                                                     F




                                                     G




                                                     H
170            SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A           47. Insofar as Aadhaar authentication service is concerned, it was
      explained that the same is e-KYC wherein following process is involved:




B




C




D




E




F




            48. It was asserted with all vehemence that while doing the
G     aforesaid authentication, no other information is collected or stored by
      the Authority/CIDR, specifically pointing that:
            (a) The Authority does not collect purpose, location or details of
            transaction. Thus, it is purpose blind.
            (b) The information collected as aforesaid remains in silos.
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          171
                    [A. K. SIKRI, J.]

      (c) Merging of silos is prohibited.                                    A
      (d) The RE is provided answer only in Yes or No about the
      authentication of the person concerned.
      (e) The authentication process is not exposed to the internet world.
      (f) Security measures as per the provisions of Section 29(3) read      B
      with Section 38(g) as well as Regulation 17(1)(d) of the
      Authentication Regulations are strictly followed and adhere to.
      The Aadhaar Authentication Security has been described in the
following manner:
                                                                             C




                                                                             D




                                                                             E




                                                                             F




                                                                             G




                                                                             H
172            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A            49. In this hue, the Authority has projected that the Aadhaar design
      takes full care of privacy and security of the persons. It is sought to be
      demonstrated by pointing out the following features:
            (i) Privacy is ensured by the very design of Aadhaar which was
            conceived by the Authority from very inception and is now even
B           incarnated in the Aadhaar Act because : (a) it is backed by minimal
            data, federated databases, optimal ignorance; and (b) there is no
            transaction/pooling data coupled with the fact that resident
            authorised access to identity data is available.
            (ii) Aadhaar is designed for inclusion inasmuch as : (a) there is
C           flexibility of demographic data, multi-modal biometrics, and flexible
            processes; (b) DDSVP Committee by Dr. V.N. Vittal, former
            CVC; and (c) Biometric design and Standards Committee by Dr.
            Gairola, Former DG, NIC.
            (iii) All security numbers are followed which can be seen from:
D           (a) PKI-2048 encryption from the time of capture, (b) adoption
            of best-in-class security standards and practices, and (c) strong
            audit and traceability as well as fraud detection.
              50. It was explained that the security and data privacy is ensured
      in the following way:
E           (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
F           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).
G           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.
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          173
                    [A. K. SIKRI, J.]

      (v) The original biometric images of fingerprints, iris and face are   A
      archived and stored offline. Hence, they cannot be accessed
      through an online network.
      (vi) The biometric system provides high accuracy of over 99.86%.
      The mixed biometric have been adopted only t enhance the
      accuracy and to reduce the errors which may arise on account of        B
      some residents either not having biometrics or not having some
      particular biometric.
      51. Above all, there is an oversight by Technology and Architecture
Review Board (TARB) and Security Review Committee. This Board
and Committee consists of very high profiled officers. The aforesaid         C
security measures are shown by the Authority in the following manner:




                                                                             D




                                                                             E




                                                                             F




                                                                             G




                                                                             H
174   SUPREME COURT REPORTS   [2018] 8 S.C.R.


A




B




C




D




E




F




G




H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA   175
                   [A. K. SIKRI, J.]

                                                     A




                                                     B




                                                     C




                                                     D




                                                     E




                                                     F




                                                     G




                                                     H
176             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A            52. We may point out at this stage that to the powerpoint
      presentation by Dr. Pandey on the aforesaid lines, certain questions were
      put to him by Mr. Shyam Divan as well as Mr. Vishwanathan, senior
      advocates, and the answers thereto were given by Dr. Pandey. In order
      to have the complete picture, we will be well advised to reproduce these
      questions and their answers as well, which are as follows:
B
            53. Questions and Answers to the queries raised by the petitioners
      in W.P. (C) No. 1056 of 2017 entitled ‘Nachiket Udupa & Anr. v.
      Union of India
             (1) What are the figures for authentication failures, both at the
C     national and state level? Please provide a breakup, between fingerprints
      and iris.
             Ans.: UIDAI cannot provide authentication failure rates at the
      state level since it does not track the location of the authentication
      transactions. Authentication failure rate at national level is as below:
D
          Modality      Unique UID       Failed Unique ID    Failed Percentage
                        Participated
            IRIS         1,08,50,391         9,27,132              8.54%
          FINGER        61,63,63,346        3,69,62,619            6.00%

E            It must be stated that authentication failures do not mean exclusion
      or denial from subsidies, benefits or services since the requesting entities
      are obliged under the law to provide for exception handling mechanisms.
            (2) In case a person who is claiming a biometric exception (e.g. a
      person suffering from leprosy) does not have a mobile phone number, or
F     has not given it in the enrolment form, or if the phone number changes –
      how will her Aadhaar enrolment and subsequent authentication occur
      and under which provision of law?
            Ans.: Aadhaar enrolment is done for all residents, even of residents
      with leprosy. Biometric exception process is defined in the UIDAI
G     resident enrolment process. In the case of a leprosy patient, who may
      not be able to do fingerprint authentication, iris authentication can be
      used for update (and add the mobile number). This was the reason for
      multi-modal enrolment and authentication being selected for use in
      Aadhaar.
H
            JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           177
                               [A. K. SIKRI, J.]

                   Only in an unlikely scenario where both iris and fingerprint cannot   A
          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
                                                                                         B
          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            C
          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 code based verification allows
          Aadhaar number holders to use their ID on a day-to-day purpose without
                                                                                         D
centage   using online e-KYC authentication. The verification through offline QR
          code can be used for those purposes or cases where proof of presence
%         or proof of ownership of card is not required.
%                  The Aadhaar Act and Aadhaar (Enrolment and Update)
          Regulations, 2016 define special provision for enrolment of residents
          with biometric exception. Further, as per Regulation 14(i) of the              E
          Authentication Regulations, RE shall implement exception-handling
          mechanisms and backup identity authentication mechanisms to ensure
          seamless provision of authentication services to Aadhaar number holders.
          Accordingly, DBT Mission Cabinet Secretariat has issued a detailed
          circular dated December 19, 2017 regarding exception handling during           F
          use of Aadhaar in the benefit schemes of the Government.
                (3) Are there any surprise checks, field studies done to check the
          authenticity of the exemption registers?
                 Ans.: As per Regulation 14(i) of the Authentication Regulations,
          this exception handling mechanism is to be implemented and monitored           G
          by the requesting entities and in case of the Government, their respective
          Ministries. Further, the DBT Mission Cabinet Secretariat had issued
          Circular dated December 19, 2017 on exception handling and audit of
          exceptions.
                                                                                         H
178             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A            (4) Between the ages of 5-15 years, can a school, as an
      ‘introducer’, enrol a child without parental consent?
             Ans.: School officials, if permitted to act as ‘introducer’, can enrol
      only when there is a parental consent to enrol. The disclosure requirement
      as per Section 3(2) of the Aadhaar Act and the Aadhaar (Enrolment and
B     Update) Regulations, 2016 (Schedule-I) is implemented through the
      enrolment form which is signed by the resident making it informed
      disclosure. In case of children, the consent form will be signed by the
      parent/guardian.
            (5) Once a child attains the age of 18 years, is there any way for
C     them to opt out or revoke consent?
             Ans.: It is not permissible under the Aadhaar Act. However,
      residents have the option of permanently locking their biometrics and
      only temporarily unlock it when needed for biometric authentication as
      per Regulation 11 of the Authentication Regulations.
D           (6) What is the status of the enrolments done by the 49,000
      blacklisted enrolment operators? Please provide the number of
      enrolments 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
E     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
F     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
G
      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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            179
                     [A. K. SIKRI, J.]

do not pertain to the number of unique individuals who have been denied         A
Aadhaar enrolment resulting in no Aadhaar issued to them. This figure
merely pertains to the number of applications which have been identified
by the Aadhaar de-duplication system as having matching biometrics to
an existing Aadhaar number holder. The biometric de-duplication system
is designed to identify as duplicate those cases where any one of the
                                                                                B
biometrics (ten fingers and two irises) match. However, very often it is
found that all the biometrics match. It is highly improbable for the
biometrics to match unless the same person has applied again. There
are a number of reasons why the same person might apply more than
once. For instance, many individuals innocently apply for enrolment
multiple times because of the delay in getting their Aadhaar cards due to       C
postal delays, loss or destruction of their cards or confusion about how
the system works. Each time one applies for Aadhaar, the system
identifies her as a new enrolment but when it recognises that the
individual’s biometrics match with already those in the database,
thereafter further checks, including manual check through experienced
                                                                                D
personnels, are done. After that exercise, if it is found that the person is
already registered, it rejects the enrolment application. One of their
main reasons for rejection is that multiple people would put their biometric
details like fingerprints for Aadhaar generation either as a fraudulent
exercise or by mistake, which also would get rejected. There were
many fakes and frauds in the earlier systems and several reports have           E
found that almost 50% of the subsidies were getting pilfered away by
fakes and duplicates in the system. Then, there would also be several
such people who may have tried to defraud the Aadhaar enrolment
system as well but failed get multiple Aadhaar numbers due to the stringent
Aadhaar de-duplication process. Thus, the mere fact that 6.23 crore
                                                                                F
enrolments have been rejected as biometric duplicates does not mean
that 6.23 crore people have been denied an Aadhaar number as has
been alleged by the petitioners. Any genuine person who does not have
an Aadhaar number and whose enrolment has been rejected can always
apply again for enrolment. It is worth noting that none of the de-duplication
rejects have come forward to lodge complaints either with the Authority         G
or with the Government about denial of Aadhaar number. None of them
have even approached any Court of law. Evidently, the genuine 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
                                                                                H
180            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     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
B     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
C     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.
D             Those whose enrolments have been rejected for any reason
      and who do not have Aadhaar can re-enrol and obtain Aadhaar. Rejection
      of enrolments do not mean that the person will never be able to get
      Aadhaar.
            (9) What does “any other appropriate response” under Section
E     8(4) of the Aadhaar Act include?
            Ans.: “Any other appropriate responses” includes e-KYC or
      limited e-KYC data. As per Regulation 3 of Authentication Regulations,
      UIDAI provides two types of authentication facilities, namely -
            (i) Yes/No authentication facility; and
F
            (ii) e-KYC authentication facility.
            In Yes/No authentication, UIDAI provides the response as Yes or
      No along with relevant error codes, if any.
            In e-KYC authentication, UIDAI provides the demographic data
G     along with photograph and in case of mismatch/error, the relevant error
      codes.
            54. Questions and Answers to the queries raised by the petitioners
      in W.P. (C) No. 829 of 2013 entitled ‘S.G. Vombatkere & Anr. v. Union
      of India
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                         181
                    [A. K. SIKRI, J.]

      (1) Please confirm that no UIDAI official verifies the correctness    A
of documents offered at the stage of enrolment/updating.
       Ans.: 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     B
of documents.
     (2) Please confirm that UIDAI does not know whether the
documents shown at the time of enrolment/updating are genuine or false.
      Ans.: The answer is same as in (1) above.
                                                                            C
      (3) Please confirm:
      (a) UIDAI does not identify the persons it only matches the
biometric information received at the time of authentication with its
records and provides a Yes/No response;
       Ans.: Biometric authentication of an Aadhaar number holder is        D
always performed as 1:1 biometric match against his/her Aadhaar number
(identity) in CIDR. Based on the match, UIDAI provides Yes or No
response. A “Yes” response means a positive identification of the Aadhaar
number holder.
       Each enrolment is biometrically de-duplicated against all (1.2       E
billion) residents to issue the Aadhaar number (or Unique Identity).
       (b) UIDAI takes no responsibility with respect to the correctness
of the name, date of birth or address of the person enrolled.
       Ans.: The Name/Address/DOB are derived from the Proof of
Identity (POI)/Proof of Address (POA) documents submitted during            F
enrolments.
      The 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.
                                                                            G
       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.                                                 H
182             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A            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.
B
             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
C     Aadhaar is to issue a unique identity for the residents of India. Hence,
      each enrolment is biometrically de-duplicated against all (1.2 billion)
      residents to issue the Aadhaar number (or Unique Identity).
           Section 4 of Aadhaar lays down the properties of an Aadhaar
      number. Sub-section (3) of Section 4 reads as under:
D
            “(3) An Aadhaar number, in physical or electronic form subject to
            authentication and other conditions, as may be specified by
            regulations, may be accepted as proof of identity of the Aadhaar
            number holder for any purpose.”

E           The requesting entities are at liberty to use any or multiple of
      authentication mode available under Regulation 4 of Aadhaar
      (Authentication) Regulation, 2016 as per their requirements and needs
      of security etc.
             (b) The biometric authentication is based on a probabilistic match
F     of the biometric captured during authentication and the record stored
      with CIDR.
             Ans.: Biometric authentication is based on 1:1 matching and,
      therefore, in that sense it is not probabilistic. If biometrics are captured
      it will lead to successful authentication. If biometrics are not well
      captured during authentication or an impostor tries authentication, it will
G
      lead to authentication failure. Aadhaar Proof of Concept studies show
      that a vast majority of residents (>98%) can successfully authenticate
      using biometric modalities such fingerprints and/or iris.
           However, the Aadhaar Act and Regulations provides that an
      Aadhaar number holder cannot be denied service due to the failure of
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           183
                     [A. K. SIKRI, J.]

Aadhaar authentication. Hence, all Aadhaar applications must implement         A
exception processes. Possible methods to implement the exception
process include:
     (i) Family Based Authentication: Family based applications such
as PDS or Health applications may allow authentication by family
members to allow resident to avail services.                                   B
     (ii) Alternate Modalities: Some applications may use different
modalities for exception handling. Alternate modalities include:
      (a) Iris Authentication
      (b) OTP Authentication (if allowed by policy)                            C
       (iii) Biometric Fusion: UIDAI is introducing face authentication
as secondary authentication factor to reduce the rate of authentication
failures, especially for senior citizens. At this time, face authentication
will be used only conjunction with another authentication factor such as
finger/iris/OTP.                                                               D
      (a) Face + Finger Fusion
      (b) Face + Iris Fusion
      (c) Face + OTP Fusion
      (iv) Non Aadhaar Based Exception process: Applications may               E
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          F
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      G
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
                                                                               H
184             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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) Please confirm that the reasons why over 49000 enrolment
B     operators were blacklisted include: (i) failure to verify documents
      presented; (ii) failure to maintain records of documents submitted; (iii)
      misuse of information submitted; and (iv) aiding or abetting false
      enrolments?
              Ans.: UIDAI has a policy to enforce the process guidelines and
C     data quality check during the enrolment process. 100% of the enrolments
      done by operators undergoes a quality assurance check. If any Aadhaar
      enrolment is found to be not as per the UIDAI process, the enrolment
      itself gets rejected and Aadhaar is not generated. If such mistake by an
      operator crosses a threshold defined in the policy, the operator is
      blacklisted/ removed from the UIDAI ecosystem. As such, of the 49,000
D     operators who have been blacklisted/removed from the UIDAI eco-
      system, all the enrolments which were in violation of the process were
      rejected in the QA stage. Enrolment operators may be blacklisted for
      the following reasons:
            • illegally charging the resident for Aadhaar enrolment
E
            • poor demographic data quality
            • invalid biometric exceptions
            • other process malpractice
F           (7) Please confirm:
             (a) At the stage of enrolment, there is no verification as to whether
      a person is an illegal immigrant.
            (b) At the stage of enrolment, there is no verification about a
      person being resident in India for 182 days or more in the past 12 months.
G
            (c) Foreign nationals may enrol and are issued Aadhaar numbers.
             (d) Persons retain their Aadhaar number even after they cease to
      be resident. This is true of foreign nationals as well.


H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                               185
                     [A. K. SIKRI, J.]

       Ans.:                                                                       A
      (a) At the time of enrolment, verification is done based upon
documents provided by the resident. In case any violation of prescribed
guidelines comes to light, the concerned Aadhaar is omitted/deactivated.
      (b) This has been included through the enrolment form where
resident undertakes and signs the disclosure:                                      B
      “Disclosure under Section 3(2) of the Aadhaar (Targeted Delivery
      of Financial And Other Subsidies, Benefits and Services) Act,
      2016
      I confirm that I have been residing in India for at least 182 days in
      the preceding 12 months & information (including biometrics)                 C
      provided by me to the UIDAI is my own and is true, correct and
      accurate. I am aware that my information (including biometrics)
      will be used for generation of Aadhaar and authentication. I
      understand that my identity information (except core biometric)
      may be provided to an agency only with my consent during
                                                                                   D
      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              E
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;”                                         F
       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               G
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 only. Ineligibility of a person to retain an Aadhaar number
owing to become non-resident may be treated as a ground for deactivation
of Aadhaar number and Regulation 28(l)(f) of the Aadhaar Enrolment
                                                                                   H
186            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     Regulations. This is in keeping with Section 31(1) and (3) of the Aadhaar
      Act wherein it is an obligation on an Aadhaar number holder to inform
      the UIDAI of changes in demographic information and for the Authority
      to make the necessary alteration.
            (8) Please confirm the Points Of Service (POS) biometric readers
B     are capable of storing biometric information.
             Ans.: UIDAI has mandated use of Registered Devices (RD) for
      all authentication requests. With RDs, 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
C     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
D     17(1)(a) of the Authentication Regulations.
            (9) Referring to slide/page 13, please confirm that the architecture
      under the Aadhaar Act includes: (i) authentication user agencies (e.g.
      Kerala Dairy Farmers Welfare Fund Board); (ii) authentication service
      agencies (e.g. Airtel); and (iii) CIDR.
E
             Ans.: UIDAI appoints Requesting Entities (AUA/KUA) and
      Authentication Service Agency (ASA) as per Regulation 12 of
      Authentication Regulations. List of Requesting Entitles (AUA/KUA)
      and Authentication Service Agency appointed by UIDAI is available on
      UIDAI’s website. An AUA/KUA can do authentication on behalf of
F     other entities under Regulation 15 and Regulation 16.
             (10) Please confirm that one or more entitles in the Aadhaar
      architecture described in the previous paragraph record the date and
      time of the authentication, the client IP, the device ID and purpose of
      authentication.
G
              Ans.: UIDAI does not ask requesting entities to maintain any
      logs related to IP address of the device, GPS coordinates of the device
      and purpose of authentication. However, AUAs like banks, telecom
      etc., in order to ensure that their systems are secure, frauds are managed,
      they may store additional information as per their requirement under
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          187
                    [A. K. SIKRI, J.]

their respective laws to secure their system. Section 32(3) of the Aadhaar   A
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:              B
      (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     C
          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.
                                                                             D
       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 address
of the device, GPS coordinates of the device etc. ASAs are mandated          E
to maintain logs as per Regulation 20 of the Authentication Regulations:
      (i) identity of the requesting entity;
      (ii) parameters of authentication request submitted; and
      (iii) parameters received as authentication response.                  F
       Provided that no Aadhaar number, PID information, device identity
related data and e-KYC response data, where applicable, shall be
retained.
       (11) Referring to slide/page 7 and 14, please confirm that
                                                                             G
‘traceability’ features enable UIDAI to track the specific device and its
location from where each and every authentication takes place.
       Ans.: UIDAI gets the AUA code, ASA code, unique device code,
registered device code used for authentication. UIDAI does not get
any information related to the IP address or the GPS location from where
                                                                             H
188            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     authentication is performed as these parameters are not 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
B
      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.
            Summing up the Scheme:
C
             55. The whole architecture of Aadhaar is devised to give unique
      identity to the citizens of this country. No doubt, a person can have
      various documents on the basis of which that individual can establish her
      identify. It may be in the form of a passport, Permanent Account Number
      (PAN) card, ration card and so on. For the purpose of enrolment itself
D     number of documents are prescribed which an individual can produce
      on the basis of which Aadhaar card can be issued. Thus, such documents,
      in a way, are also proof of identity. However, there is a fundamental
      difference between the Aadhaar card as a mean of identity and other
      documents through which identity can be established. Enrolment for
E     Aadhaar card also requires giving of demographic information as well
      as biometric information which is in the form of iris and fingerprints.
      This process eliminates any chance of duplication. It is 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
F     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
G     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
H     thereof is captured under the heading ‘Introduction’ above while
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                               189
                     [A. K. SIKRI, J.]

mentioning how and under what circumstances the whole project was                  A
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, they can claim various
                                                                                   B
privileges and benefits etc. which are actually meant for these people.
       Identity of a person has a significance for every individual in his/
her life. In a civilised society every individual, on taking birth, is given a
name. Her place of birth and parentage also becomes important as she
is known in the society and these demographic particulars also become
important attribute of her personality. Throughout their lives, individuals        C
are supposed to provide such information: be it admission in a school or
college or at the time of taking job or engaging in any profession or
business activity, etc. When all this information is available in one place,
in the form of Aadhaar card, it not only becomes unique, it would also
qualify as a document of empowerment. Added with this feature, when                D
an individual knows that no other person can clone her, it assumes greater
significance.
        57. Thus, the scheme by itself can be treated as laudable when it
comes to enabling an individual to seek Aadhaar number, more so, when
it is voluntary in nature. Howsoever benevolent the scheme may be, it              E
has to pass the muster of constitutionality. According to the petitioners,
the very architecture of Aadhaar is unconstitutional on various grounds,
glimpse whereof can be provided at this stage:
       Gist of the challenge to the Aadhaar Scheme as well as the
Act:                                                                               F
       58. The petitioners accept that the case at hand is unique, simply
because of the reason that the programme challenged here is itself without
precedent. According to them, no democratic society has adopted a
programme that is similar in its command and sweep. The case is about
a new technology that the Government seeks to deploy and a new                     G
architecture of governance that it seeks to build on this technology. The
petitioners are discrediting the Government’s claim that biometric
technology employed and the Aadhaar Act is greatly beneficial. As per
the petitioners, this is an inroad into the rights and liberties of the citizens
which the Constitution of India guarantees. It is intrusive in nature. At
                                                                                   H
190             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     its core, Aadhaar alters the relationship between the citizen and the State.
      It diminishes the status of the citizens. Rights freely exercised, 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
B
      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
C     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,
D               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).

E           (iii) Elements of the Aadhaar project or programme that continues
                to operate, though not within the cover of the Aadhaar Act.
            (iv) Specific Regulations framed under the Aadhaar Act,
               illustratively the Aadhaar (Authentication) Regulations, 2016.
            (v) A set of subordinate legislation in the form of statutory rules/
F               regulations including the Money Laundering (Amendment)
                Rules, 2017.
            (vi) All notifications (nearly 139) issued under Section 7 of the
               Aadhaar Act (assuming the Act is upheld) insofar as they make
               Aadhaar mandatory for availing certain benefits/services/
G              subsidies, including PDS, MGNREGA and social security
               pension.
            (vii) Actions on the part of the authorities to make Aadhaar
               mandatory even where not covered by Section 7, inter alia:
               Actions by CBSE, NEET, JEE and UGC requirements for
H              scholarship.
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            191
                     [A. K. SIKRI, J.]

      (viii) Specifically, actions on part of the Government mandating          A
          linking of mobile phones and Aadhaar vide DoT circular dated
          March 23, 2017.
      (ix)Section 139AA of the Income Tax Act, 1961 insofar as it
         violates Article 21 by mandating linking Aadhaar to PAN and
         requiring Aadhaar linkage for filing returns.                          B
       60. Apart from the declaratory reliefs regarding ultra vires and
certiorari to quash the provisions/actions enumerated above, there are
certain other reliefs that are also sought, including:
       (i) Suitable declarations regarding the physical autonomy of a
          person over her own body qua the Indian State.                        C

       (ii) Mandatory directions requiring the respondents to give an
          option to persons who are enrolled with the Aadhaar programme
          to opt out and to delete the data with suitable certification for
          compliance.
                                                                                D
       (iii) Mandatory directions to all concerned authorities that should
           the Aadhaar Act, etc. be upheld, nevertheless, every person
           must be entitled to avail services, benefits etc. through
           alternative means of identification. Negatively, nothing can be
           withheld from a citizen merely because he/she does not have
           an Aadhaar Card or does not wish to use their Aadhaar Card.          E
       (iv) Mandatory directions consistent with the fundamental right
          to privacy and the right of a citizen to be let alone that no
          electronic trial or record of his/her authentication be maintained.
      61. On the aforesaid premise, the petitioners point out following
                                                                                F
heads of challenge:
      Surveillance:
       62. The project creates the architecture for pervasive surveillance
and unless the project is stopped, it will lead to an Orwellian State where
every move of the citizen is constantly tracked and recorded by the             G
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
                                                                                H
192            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     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
B     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.
C
            (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
            enrolling agencies.

D           (c) By enabling private entities to use the Aadhaar authentication
            platform, the citizen’s right to informational privacy is violated
            inasmuch as the citizen is compelled to ‘report’ his/her actions to
            the State.
            (d) Even where a person is availing of a subsidy, benefit or service
            from the State, mandatory authentication through the Aadhaar
E
            platform (without an option to the citizen to use an alternative
            mode of identification) violates the right to informational privacy.
            (e) With Aadhaar being made compulsory for holding a bank
            account, operating a cell phone, having a valid PAN, holding mutual
            funds, securing admission to school, taking a board examination,
F
            etc. the citizen has no option but to obtain Aadhaar. Compelling
            the citizen to part with biometric information violates individual
            autonomy and dignity.
            (f) In a digital society an individual has the right to protect himself
            by controlling the dissemination of personal information, including
G           biometric information. Compelling an individual to establish his
            identity by planting her biometric at multiple points of service
            violates privacy involving the person.
            (g) The seeding of Aadhaar in distinct databases enables the content
            of information about an individual that is stored in different silos to
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            193
                    [A. K. SIKRI, J.]

      be aggregated. This enables the State to build complete profiles         A
      of individuals violating privacy through the convergence of data.
      Limited Government:
       64. 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               B
Rights, the distribution of powers amongst organs of the State and the
ultimate check by way of judicial review. The Aadhaar project is
destructive of the limited Government. The Constitution is not about the
power of the State, but about the limits on the power of the State. Post
Aadhaar, the State will completely dominate the citizen and alter the          C
relationship between citizen and the State. The features of a totalitarian
state is seen from:
      (a) A person cannot conduct routine activities such as operating a
      bank account, holding an investment in mutual funds, receiving
      government pension, receiving scholarship, receiving food rations,       D
      operating a mobile phone without the State knowing about these
      activities.
      (b) The State 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.                                                       E
      (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                 F
      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.   G
      (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.

                                                                               H
194             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           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 impugned legislation states that it is to be used for the
B     delivery of subsidies, benefits and services, expenditure for which is
      incurred from the Consolidated Fund of India, the scope of the impugned
      Act is far beyond what is envisaged under Article 110. Inasmuch as the
      impugned Act has not followed the constitutional procedure mandated
      for the passage of a law by disguising the statute as a ‘Money Bill’,
      there is no valid legislative process that has been followed in this case.
C     The legislative process being colourable and since judicial review extends
      wherever Part III rights are violated, the Aadhaar Act is liable to be
      struck down.
           Procedure followed violates Articles 14 and 21 of the
      Constitution:
D
            66. The procedure adopted by the respondents, both pre-Act and
      post-Act, is arbitrary and in violation of Articles 14 and 21 of the
      Constitution because:
            (a) There is no informed consent at the time of enrolment.
E           Individuals are not told about crucial aspects such as potential
            misuse of the information, the commercial value of the information,
            the storage of information in a centralised database, that the
            information supplied could be used against the individual in criminal
            proceedings pursuant to a court order, there is no opt-out option,
            the entire enrolment process is conducted by private entities without
F           any governmental supervision, etc.
            (b) UIDAI has no direct relationship with the enrolling agency
            which collects sensitive personal information (biometric and
            demographic).
            (c) The data collected and uploaded in to the CIDR is not verified
G
            by any Government official designated by the UIDAI. The data
            collected and stored lacks integrity.
            (d) The procedure at the stage of enrolment and authentication
            enables the enrolling agency as well as the ‘requesting entity’ to
            capture, store and misuse/use the biometric as well as demographic
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                               195
                     [A. K. SIKRI, J.]

       information without the UIDAI having any control over such                  A
       misuse/use.
       Unreliability of Biometrics and Exclusion:
       67. The foundation of the project, i.e. biometrics, is an unreliable
and untested technology. Moreover, biometric exceptions severely erode
reliability. The biometric authentication system works on a probabilistic          B
model. Consequently, entitlements are reduced from certainty to a chance
delivery where the biometrics match. Across the country several persons
are losing out on their entitlements, 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’          C
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     D
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:                                             E
       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.                   F
       Children:
       70. As per the petitioners, there is no justification to include children
in the Aadhaar programme for various reasons.
      71. It may also be recorded at this juncture itself that insofar as          G
the Aadhaar Act is concerned, following provisions thereof are specifically
attacked as unconstitutional:
       (i) Section 2(c) and 2(d) - authentication and authentication record,
       read with Section 32
                                                                                   H
196            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A           (ii) Section 2(h) read with Section 10 of CIDR
            (iii) Section 2(l) read with Regulation 23 of the Aadhaar (Enrolment
            and Updates) Regulation - ‘enrolling agency’
            (iv) Section 2(v) - ‘resident’
B           (v) Section 3 – Aadhaar Number
            (vi) Section 5 – Special treatment to children
            (vii) Section 6 – Update of information
            (viii) Section 7
C           (ix) Section 8
            (x) Section 9
            (xi) Chapter IV – Sections 11 to 23
            (xii) Sections 23 and 54 – excessive delegation
D           (xiii) Section 23(2)(g) read with Chapter VI & VII – Regulations
            27 to 32 of the Aadhaar (Enrolment and Update) Regulations,
            2016
            (xiv) Section 29
            (xv) Section 33
E
            (xvi) Section 47
            (xvii) Section 48 – Power of Central Government to supersede
            UIDAI
            (xviii) Section 57
F
            (xix) Section 59
            Some Introductory Remarks:
             72. Before proceeding further, it would be necessary to state here
      the approach which we have adopted in dealing with various issues that
G     are raised in these petitions. That may help in understanding the manner
      in which the matter is dealt with. This necessitates some introductory
      remarks:
            (i) We may remark at this stage itself that many of the heads of
      challenge which are taken note of above are overlapping and, therefore,
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                 197
                     [A. K. SIKRI, J.]

discussion on one aspect may provide substantial answers to the arguments            A
advanced under the other head of challenge as well. Our endeavour,
therefore, would be to eschew the repetitive discussion. However, our
anxiety to bring clarity and also in order to have continuity of thought
while discussing a particular head, may have led to some repetitions at
different places. In any case, we would be dealing with the various
                                                                                     B
heads of challenge, one by one, so as to cover the entire spectrum.
       (ii) In order to have a smooth flow of discussion, we are going to
formulate the questions which arise in all these petitions and then decide
those issues. Since, number of advocates7 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              C
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.             D
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            E
Court has liberally accepted the good practices, rules of interpretation
and norms of constitutional courts of other jurisdictions. In fact, in drafting
Indian Constitution itself, the framing fathers had studied various foreign
models and adopted provisions from different Constitutions after deep
reflection. Constitutional influences of system prevailing in some of the
countries on Indian Constitution can be summarised as under:                         F
    F ro m UK         -   Parliament ary Type of Government
                      -   Cabinet Sys tem of M inisters
                      -   Bicameral Parl iam ent
                      -   Lower House m ore powerful
                      -   Council o f Minsters responsible to Lo wer
                                                                                     G
                          House
 7
   S/Shri Kapil Sibal, Gopal Subramaniam, P. Chidambaram, Shyam Divan, K.V.
Viswanathan, Neeraj Kishan Kaul, C.U. Singh, Anand Grover, Sanjay R. Hegde, Arvind
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.                                                                           H
198            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A       From US                  - Written Constitution
                                 - Executive head of State known as President
                                   and his being the Supreme Commander of
                                   the Armed Forces
                                 - Vice-President as the ex-officio Chairman of
                                   Rajya Sabha
B                                - Bill of Rights
                                 - Supreme Court
                                 - Provision of States
                                 - Independence of Judiciary and judicial
                                   review
                                 - Preamble
C                                - Removal of Supreme Court and High Court
                                   Judges
        From USSR                - Fundamental Duties
                                 - Five Year Plan
        From Australia           - Concurrent List
                                 - Language of the preamble
D                                - Provision regarding trade, commerce and
                                   intercourse
        From Japan               - Law on which the Supreme Court function
        From         Weimar      - Suspension of Fundamental Rights during
        Constitution     of        the emergency
        Germany
E       From Canada              - Scheme of federation with a strong centre
                                 - Distribution of powers between the centre
                                   and the states and placing residuary powers
                                   with the centre
        From Ireland             - Concept of Directive Principles of States
                                   Policy
F                                - Method of election of President
                                 - Nomination of members in the Rajya Sabha
                                   by the President

             It was, therefore, but natural to find out the manner in which
      particular provisions have been interpreted by the constitutional courts
G
      of the aforesaid countries. Case law of this Court would reflect this for
      interpreting the provisions relating to ‘Inter-State Trade, Commerce &
      Intercourse’. The case law of the Australian High Court is liberally
      referred as this Chapter is influenced by the provisions contained in the
      Australian Constitution. Likewise, for interpreting provisions of Part IX
H     of the Constitution on ‘Relations between the Union and the States’
              JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                     199
                                 [A. K. SIKRI, J.]

            where Canadian model is followed, the judgments of Canadian Supreme                      A
President   Court have been cited by this Court from time to time. Influence of
ander of    U.S. Constitutionalism, tempered by the wish to preserve India’s own
            characteristics, while interpreting chapter relating to fundamental rights
irman of    as well as power of judicial review is also discernible. A critical analysis
            of the various judgments of this Court, where foreign precedents are
                                                                                                     B
            cited8, formulates four typologies of use, namely:
                  (a) Where the court relies on foreign precedents for guidance on
 judicial   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;
gh Court                                                                                             C
                   (c) To distinguish the country’s context from the foreign one9;
                   (d) To ‘read’ in the Constitution implied or unenumerated rights 10.
                     It can be said that though this Court has been liberally relying
            upon the judgments of the constitutional courts of other countries,
erce and    particularly when it comes to human rights discourse, at the same time,                  D
            in certain situations, note of caution is also added to give a message that
nction      the judgment of other jurisdiction cannot be relied blindly and it would
s during    depend as to whether a particular judgment will fit in Indian context or
            not. As a matter of fact, in Basheshar Nath, the Court discussed the
            doctrine of waiver in force in the United States and rejected it firmly
 entre      stating that:                                                                            E
 e centre
                  :...the doctrine of waiver enunciated by some American Judges in
y powers
                  construing the American Constitution cannot be introduced in our
                  Constitution...We are not for the moment convinced that this theory
of States
                  has any relevancy in construing the fundamental rights conferred
                  by Part III of the Constitution.”                                                  F
ya Sabha          On the contrary, in Romesh Thappar, the Court completely based
            its decision to strike down a law restricting the free circulation of
            newspapers on two US precedents, Ex parte Jackson11 and Lovell v.
            City of Griffin12, and affirmed that the protection of freedom of
            8
              Thiruvengadam, The Use of Foreign Law in Constitutional Cases in India and Singapore   G
            (2010)
            9
              Basheshar Nath v. Commissioner of Income Tax, Delhi and Rajasthan & Anr., 1959
            Supp (1) SCR 528
            10
                Romesh Thappar v. State of Madras, 1950 SCR 594
            11
                Ex Parte Jackson, 96 US 727 (1878).
             12
                Lovell v. City of Griffin, 303 US 444 (1938).
                                                                                                     H
200              SUPREME COURT REPORTS                                  [2018] 8 S.C.R.


A     expression in India follows the maxim of Madison that the Court
      transposed from its quotation in Near v. Minnesota13, according to which
      ‘it is better to leave a few of its noxious branches to their luxuriant
      growth, than, by pruning them away, to injure the vigour of those yielding
      the proper fruits’. Likewise, the role of foreign precedents in a majority
      opinion is confirmed in the decision of His Holiness Kesavananda
B
      Bharati Sripadagalvaru which clarifies Parliament’s power to amend
      the Constitution. At the same time, looking to the use of foreign precedents
      in this judgment, Justice S.M. Sikri (as His Lordship then was), dealing
      with the interpretation of Article 368 of the Constitution, first of all,
      highlighted that:
C            “No other Constitution in the world is like ours. No other
             Constitution combines under its wings such diverse peoples,
             numbering now more than 550 millions [sic], with different
             languages and religions and in different stages of economic
             development, into one nation, and no other nation is faced with
D            such vast socio-economic problems.
            After this premise, however, His Lordship accepts, in order to
      define what an ‘amendment’ is according to the Indian Constitution, the
      reasoning of Lord Greene in Bidie v. General Accident, Fire and Life
      Assurance Corporation14 and that of Justice Holmes in Towne v.
E     Eisner15, 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 Australia16 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
F     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
G     problems of this country and on that basis to accept a particular norm, or
      13
         Near v. Minnesota, 282 US 607 (1931) 717-18.
      14
         Bidie v. General Accident, Fire and Life Assurance Corporation (1948) 2 All ER 995,
      998.
      15
         Towne v. Eisner, 245 US 418.
      16
         James v. Commonwealth of Australia, (1936) AC 578.
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                               201
                     [A. K. SIKRI, J.]

for that matter, to formulate a constitutional norm which is relevant in           A
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. Therefore, rather than extending subsidies, benefits and            B
services to the section of society for which these are meant, it may have
the tendency to exclude them from receiving such subsidies, benefits
and services. The respondents, on the other hand, have stated on affidavit
that the attempt of the respondents would be to ensure that no individual
who is eligible for such benefits etc. is deprived form receiving those
benefits, even when in a particular case, it is found that on authentication,      C
his fingerprints or iris are not matching and is resulting into failure. It
was clarified that since Aadhaar project is an ongoing project, there may
be some glitches in its working and there is a continuous attempt to
make improvements in order to ensure that it becomes foolproof over a
period of time. We have eschewed detailed discussion in respect of                 D
those arguments, which may not have much relevance when judging the
constitutional validity of the Act and the scheme. However, such
arguments of exclusion etc. leading to violation of Articles 14 and 21 are
dealt with at an appropriate stage. But the argument based on alleged
inaccurate claims of savings by the Authority/Union of India in respect
of certain programmes, like saving of USD 11 billion per annum due to              E
the Aadhaar project, as well as savings in the implementation of the
MGNREGA scheme, LPG subsidy, PDS savings need not detain us for
long. Such rebuttals raised by the petitioners may have relevance insofar
as working of the Act is concerned. That by itself cannot be a ground to
invalidate the statute.                                                            F
       (v) As mentioned above, notwithstanding the passions and emotions
evoked on both sides in equal measure, this Court has adopted a lambent
approach while dealing with the issues raised, having a posture of calmness
coupled with objective examination of the issues on the touchstone of
the constitutional provisions. We are in the age of constitutional                 G
democracy, that too substantive and liberal democracy. Such a
democracy is not based solely on the rule of people through their
representatives which is known as “formal democracy”. It also has
other precepts like rule of law, human rights, independence of judiciary,
separation of powers, etc. The framers of Indian Constitution duly
                                                                                   H
202             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     recognized the aforesaid precepts of liberal and substantive democracy
      with rule of law as an important and fundamental pillar. At the 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.
B           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;
C            (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.
D
            (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.
E            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
      described these requirements collectively as the ‘inner morality of law’.
      In addition to jurisprudential concept, which is important and an essential
F     condition for the rule of law, the substantive concept of the rule of law is
      equally important and inseparable norm of the rule of law in real sense.
      It encompasses the ‘right conception’ of the rule of law propounded by
      Dworkin. It means guaranteeing fundamental values of morality, justice,
      and human rights, with a proper balance between these and the other
G     needs of the society. Justice Aharon Barak, former Chief Justice of
      Israel, has lucidly explained this facet of rule of law in the following
      manner:
             “The rule of law is not merely public order, the rule of law is
             social justice based on public order. The law exists to ensure
H            proper social life. Social life, however, is not a goal in itself but a
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            203
                     [A. K. SIKRI, J.]

      means to allow the individual to live in dignity and develop himself.     A
      The human being and human rights underlie this substantive
      perception of the rule of law, with a proper balance among the
      different rights and between human rights and the proper needs
      of society. The substantive rule of law “is the rule of proper law,
      which balances the needs of society and the individual”. This is
                                                                                B
      the rule of law that strikes a balance between society’s need for
      political independence, social equality, economic development, and
      internal order, on the one hand, and the needs of the individual, his
      personal liberty, and his human dignity on the other. The Judge
      must protect this rich concept of the rule of law.”
       The ‘rule of law’, which is a fine sonorous phrase, is dynamic and       C
ever expanding and can be put alongside the brotherhood of man, human
rights and human dignity. About the modern rule of law, Professor Garner
observed:
      “The concept in its modern dress meets a need that has been felt
      throughout the history of civilization, law is not sufficient in itself   D
      and it must serve some purpose. Man is a social animal, but to
      live in society he has had to fashion for himself and in his own
      interest the law and other instruments of government, and as a
      consequence those must to some extent limit his personal liberties.
      The problem is how to control those instruments of government in          E
      accordance with the Rule of Law and in the interest of the
      governed.”
       Likewise, the basic spirit of our Constitution is 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.      F
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          G
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             H
204               SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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 & Anr. v. Shri Ranganatha Reddy & Anr. 17, this Court
      speaking through Justice Krishna Iyer observed:
B              “The social philosophy of the Constitution shapes creative judicial
               vision and orientation. Our nation has, as its dynamic doctrine,
               economic democracy sans which political democracy is chimerical.
               We say so because our Constitution, in Parts III and IV and
               elsewhere, ensouls such a value system, and the debate in this
C              case puts precisely this soul in peril….Our thesis is that the
               dialectics of social justice should not be missed if the synthesis of
               Parts III and Part IV is to influence State action and court
               pronouncements. Constitutional problems cannot be studied in a
               socio-economic vacuum, since socio-cultural changes are the
               source of the new values, and sloughing off old legal thought is
D              part of the process the new equity-loaded legality. A judge is a
               social scientist in his role as constitutional invigilator and fails
               functionally if he forgets this dimension in his complex duties.”
              In Dattatraya Govind Mahajan v. State of Maharashtra18 the
      spirit of our Constitution was explained thus:
E
               “Our Constitution is a tryst with destiny, preamble with lucent
               solemnity in the words ‘Justice – social, economic and political.’
               The three great branches of Government, as creatures of the
               Constitution, must remember this promise in their fundamental
               role and forget it at their peril, for to do so will be a betrayal of
F              chose high values and goals which this nation set for itself in its
               objective Resolution and whose elaborate summation appears in
               Part IV of the Paramount Parchment. The history of our country’s
               struggle for independence was the story of a battle between the
               forces of socio-economic exploitation and the masses of deprived
G              people of varying degrees and the Constitution sets the new sights
               of the nation…..Once we grasp the dharma of the Constitution,
               the new orientation of the karma of adjudication becomes clear.
               Our founding fathers, aware of our social realities, forged our
               fighting faith and integrating justice in its social, economic and
      17
           (1977) 4 SCC 471
      18
H          (1977) 2 SCC 548
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                         205
                        [A. K. SIKRI, J.]

         political aspects. While contemplating the meaning of the Articles     A
         of the Organic Law, the Supreme Court shall not disown Social
         Justice.”
     In National Human Rights Commission v. State of Arunachal
Pradesh19, the Supreme Court explained it again, as under:
         “We are a country governed by the Rule of Law. Our Constitution        B
         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   C
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             D
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:                                              E
      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. It is the power
of the court to review the actions of the Legislature, the Executive and
the Judiciary itself and to scrutinize the validity of any law or action. It    F
has emerged as one of the most effective instruments of protecting and
preserving the cherished freedoms in a constitutional democracy and
upholding principles such as separation of powers and rule of law. The
Judiciary, through judicial review, prevents the decisions of other branches
from impinging on the constitutional values. The fundamental nature of
                                                                                G
the Constitution is that of a limiting document, it curtails the powers of
majoritarianism from hijacking the State. The power of review is the
shield which is placed in the hands of the most judiciaries of constitutional
democracies to enable the protection of the supreme document.
19
     (1996) 1 SCC 742
                                                                                H
206                SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A           75. In Binoy Viswam v. Union of India & Ors.20, scope of judicial
      review of legislative Act was described in the following manner:
                “76. Under the Constitution, Supreme Court as well as High Courts
                are vested with the power of judicial review of not only
                administrative acts of the executive but legislative enactments
B               passed by the legislature as well. This power is given to the High
                Courts under Article 226 of the Constitution and to the Supreme
                Court under Article 32 as well as Article 136 of the Constitution.
                At the same time, the parameters on which the power of judicial
                review of administrative act is to be undertaken are different from
                the parameters on which validity of legislative enactment is to be
C               examined. No doubt, in exercises of its power of judicial review
                of legislative action, the Supreme Court, or for that matter, the
                High Courts can declare law passed by Parliament or the State
                Legislature as invalid. However, the power to strike down primary
                legislation enacted by the Union or the State Legislatures is on
D               limited grounds. Courts can strike down legislation either on the
                basis that it falls foul of federal distribution of powers or that it
                contravenes fundamental rights or other constitutional rights/
                provisions of the Constitution of India. No doubt, since the Supreme
                Court and the High Courts are treated as the ultimate arbiter in all
                matters involving interpretation of the Constitution, it is the courts
E               which have the final say on questions relating to rights and whether
                such a right is violated or not. The basis of the aforesaid 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
F               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:
G                  “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
      20
           (2017) 7 SCC 59
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          207
                   [A. K. SIKRI, J.]

      commencement of this Constitution shall continue in force             A
      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        B
   of the Constitution by courts. Such a power is recognised by this
   Court in Union of India v. SICOM Ltd. In that judgment, it was
   also held that since the term “laws”, as per Article 372, includes
   common law the power of judicial review of legislation, which is a
   part of common law applicable in India before the Constitution
   came into force, would continue to vest in the Indian courts.            C

   78. …These contours of the judicial review are spelled out in the
   clear terms in Rakesh Kohli, and particularly in the following
   paragraphs: (SCC pp. 321-22 & 325-27, paras 16-17, 26-28 &
   30)
                                                                            D
      “16. The statute enacted by Parliament or a State Legislature
      cannot be declared unconstitutional lightly. The court must be
      able to hold beyond any iota of doubt that the violation of the
      constitutional provisions was so glaring that the legislative
      provision under challenge cannot stand. Sans flagrant violation
      of the constitutional provisions, the law made by Parliament or       E
      a State Legislature is not declared bad.
      17. This Court has repeatedly stated that legislative enactment
      can be struck down by court only on two grounds, namely (i)
      that the appropriate legislature does not have the competence
      to make the law, and (ii) that it does not (sic) take away or         F
      abridge any of the fundamental rights enumerated in Part III
      of the Constitution or any other constitutional provisions. In
      McDowell and Co. while dealing with the challenge to an
      enactment based on Article 14, this Court stated in para 43 of
      the Report as follows: (SCC pp. 737-38)                               G
      ‘43. … A law made by Parliament or the legislature can be
      struck down by courts on two grounds and two grounds alone
      viz. (1) lack of legislative competence, and (2) violation of any
      of the fundamental rights guaranteed in Part III of the
      Constitution or of any other constitutional provision. There is
                                                                            H
208   SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     no third ground. … if an enactment is challenged as violative
      of Article 14, it can be struck down only if it is found that it is
      violative of the equality clause/equal protection clause enshrined
      therein. Similarly, if an enactment is challenged as violative of
      any of the fundamental rights guaranteed by sub-clauses (a)
      to (g) of Article 19(1), it can be struck down only if it is found
B
      not saved by any of the clauses (2) to (6) of Article 19 and so
      on. No enactment can be struck down by just saying that it
      is arbitrary or unreasonable. Some or the other constitutional
      infirmity has to be found before invalidating an Act. An
      enactment cannot be struck down on the ground that court
C     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.’
D            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
E     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
F     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 court may take into consideration matters
G     of common knowledge, matters of common report, the history
      of the times and may assume every state of facts which can
      be conceived existing at the time of legislation.’
      27. The above legal position has been reiterated by a
      Constitution Bench of this Court in Mahant Moti Das v. S.P.
H     Sahi.
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            209
                   [A. K. SIKRI, J.]

     28. In Hamdard Dawakhana v. Union of India, inter alia,                  A
     while referring to the earlier two decisions, namely, Bengal
     Immunity Co. Ltd. and Mahant Moti Das, it was observed in
     para 8 of the Report as follows: (Hamdard Dawakhana case,
     AIR p. 559)
     ‘8. Therefore, when the constitutionality of an enactment is             B
     challenged on the ground of violation of any of the articles in
     Part III of the Constitution, the ascertainment of its true nature
     and character becomes necessary i.e. its subject-matter, the
     area in which it is intended to operate, its purport and intent
     have to be determined. In order to do so it is legitimate to take
     into consideration all the factors such as history of the legislation,   C
     the purpose thereof, the surrounding circumstances and
     conditions, the mischief which it intended to suppress, the
     remedy for the disease which the legislature resolved to cure
     and the true reason for the remedy….’
     In Hamdard Dawakhana, the Court also followed the                        D
     statement of law in Mahant Moti Das and the two earlier
     decisions, namely, Charanjit Lal Chowdhury v. Union of
     India and State of Bombay v. F.N. Balsara and reiterated the
     principle that presumption was always in favour of
     constitutionality of an enactment.                                       E
            xx                 xx                 xx
     30. A well-known principle that in the field of taxation, the
     legislature enjoys a greater latitude for classification, has been
     noted by this Court in a long line of cases. Some of these
     decisions are Steelworth Ltd. v. State of Assam [Steelworth              F
     Ltd. v. State of Assam, 1962 Supp (2) SCR 589], Gopal Narain
     v. State of U.P. [Gopal Narain v. State of U.P., AIR 1964
     SC 370], Ganga Sugar Corpn. Ltd. v. State of U.P. [Ganga
     Sugar Corpn. Ltd. v. State of U.P., (1980) 1 SCC 223 : 1980
     SCC (Tax) 90], R.K. Garg v. Union of India [R.K. Garg v.                 G
     Union of India, (1981) 4 SCC 675 : 1982 SCC (Tax) 30] and
     State of W.B. v. E.I.T.A. India Ltd. [State of W.B. v. E.I.T.A.
     India Ltd., (2003) 5 SCC 239]”
                                                  (emphasis in original)
                                                                              H
210              SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A                        xx                 xx                 xx
             83. It is, thus, clear that in exercise of power of judicial review,
             the Indian courts are invested with powers to strike down primary
             legislation enacted by Parliament or the State Legislatures.
             However, while undertaking this exercise of judicial review, the
B            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
C            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
D            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
             with the constitutional provisions. If that is not achievable then
E            the enquiry enters the third stage. If the offending portion of the
             statute is severable, it is severed and the Court strikes down the
             impugned provision declaring the same as unconstitutional.”
             76. In support of the aforesaid proposition that an Act of the
      Parliament can be invalidated only on the aforesaid two grounds, passages
F     from various judgments were extracted21. The Court also noted the
      observations from State of A.P. & Ors. v. MCDOWELL & Co. & Ors.22
      wherein it was held that apart from the aforesaid two grounds, no third
      ground is available to validate any piece of legislation. In the process, it
      was further noted that in Rajbala & Ors. v. State of Haryana & Ors.23
G     (which followed MCDOWELL & Co. case), the Court held that a
      legislation cannot be declared unconstitutional on the ground that it is
      ‘arbitrary’ inasmuch as examining as to whether a particular Act is
      21
         State of M.P. v. Rakesh Kohli, (2012) 6 SCC 312; Ashoka Kumar Thakur v. Union of
      India, (2008) 6 SCC 1
      22
         (1996) 3 SCC 709
      23
H        (2016) 2 SCC 445
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                       211
                        [A. K. SIKRI, J.]

arbitrary or not implies a value judgment and courts do not examine the       A
wisdom of legislative choices, and, therefore, cannot undertake this
exercise.
       77. The issue whether law can be declared unconstitutional on
the ground of arbitrariness has received the attention of this Court in a
Constitution Bench judgment in the case of Shayara Bano v. Union of           B
India & Ors.24. R.F. Nariman and U.U. Lalit, JJ. discredited the ratio
of the aforesaid judgments wherein the Court had held that a law cannot
be declared unconstitutional on the ground that it is arbitrary. The Judges
pointed out the larger Bench judgment in the case of Dr. K.R.
Lakshmanan v. State of T.N. & Anr.25 and Maneka Gandhi v. Union
of India & Anr.26 where ‘manifest arbitrariness’ is recognised as the         C
third ground on which the legislative Act can be invalidated. Following
discussion in this behalf is worthy of note:
        “87. The thread of reasonableness runs through the entire
        fundamental rights chapter. What is manifestly arbitrary is
        obviously unreasonable and being contrary to the rule of law, would   D
        violate Article 14. Further, there is an apparent contradiction in
        the three-Judge Bench decision in McDowell [State of A.P. v.
        McDowell and Co., (1996) 3 SCC 709] when it is said that a
        constitutional challenge can succeed on the ground that a law is
        “disproportionate, excessive or unreasonable”, yet such challenge     E
        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    F
        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       G
        fact negated statutory law on the ground of it being arbitrary and
        therefore violative of Article 14 of the Constitution of India. In
24
   (2017) 9 SCC 1
25
   (1996) 2 SCC 226
26
   (1978) 1 SCC 248
                                                                              H
212             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A           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 1940 market
            value under the Bombay Rent Act would be arbitrary and violative
            of Article 14 of the Constitution of India (see paras 8 to 15 and
B
            31).
                       xx                xx                xx
            99. However, in State of Bihar v. Bihar Distillery Ltd. [State of
            Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453] , SCC at para
C           22, in State of M.P. v. Rakesh Kohli [State of M.P. v. Rakesh
            Kohli, (2012) 6 SCC 312 : (2012) 3 SCC (Civ) 481], SCC at
            paras 17 to 19, in Rajbala v. State of Haryana [Rajbala v. State
            of Haryana, (2016) 2 SCC 445], SCC at paras 53 to 65 and in
            Binoy Viswam v. Union of India [Binoy Viswam v. Union of
            India, (2017) 7 SCC 59], SCC at paras 80 to 82, McDowell [State
D           of A.P. v. McDowell and Co., (1996) 3 SCC 709] 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 [State of A.P. v. McDowell
            and Co., (1996) 3 SCC 709] itself is per incuriam, not having
E           noticed several judgments of Benches of equal or higher strength,
            its reasoning even otherwise being flawed. The judgments,
            following McDowell [State of A.P. v. McDowell and Co., (1996)
            3 SCC 709] are, therefore, no longer good law.”
             78. The historical development of the doctrine of arbitrariness
F     has been noticed by the said Judges in Shayara Bano in detail. It
      would be suffice to reproduce paragraphs 67 to 69 of the said judgment
      as the discussion in these paras provide a sufficient guide as to how a
      doctrine of arbitrariness is to be applied while adjudging the constitutional
      validity of a legislation.

G           “67. We now come to the development of the doctrine of
            arbitrariness and its application to State action as a distinct doctrine
            on which State action may be struck down as being violative of
            the rule of law contained in Article 14. In a significant passage,
            Bhagwati, J., in E.P. Royappa v. State of T.N. stated: (SCC p.
            38, para 85)
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          213
                   [A. K. SIKRI, J.]

                                                                            A
   “85. The last two grounds of challenge may be taken up together
   for consideration. Though we have formulated the third ground of
   challenge as a distinct and separate ground, it is really in substance
   and effect merely an aspect of the second ground based on
   violation of Articles 14 and 16. Article 16 embodies the fundamental     B
   guarantee that there shall be equality of opportunity for all citizens
   in matters relating to employment or appointment to any office
   under the State. Though 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        C
   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,     D
   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       E
   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 view, equality is antithetic
   to arbitrariness. In fact equality and arbitrariness are sworn           F
   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, and if it effects any matter
   relating to public employment, it is also violative of Article 16.       G
   Articles 14 and 16 strike at arbitrariness in State action and ensure
   fairness and equality of treatment. They require that State action
   must be based on valid relevant principles applicable alike to all
   similarly situate and it must not be guided by any extraneous or
                                                                            H
214      SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     irrelevant considerations because that would be denial of equality.
      Where the operative reason for State action, as distinguished from
      motive inducing from the antechamber of the mind, is not legitimate
      and relevant but is extraneous and outside the area of permissible
      considerations, it would amount to mala fide exercise of power
      and that is hit by Articles 14 and 16. Mala fide exercise of power
B
      and arbitrariness are different lethal radiations emanating from
      the same vice: in fact the latter comprehends the former. Both
      are inhibited by Articles 14 and 16.”
                                                    (emphasis supplied)
C     68. This was further fleshed out in Maneka Gandhi v. Union of
      India, where, after stating that various fundamental rights must
      be read together and must overlap and fertilise each other,
      Bhagwati, J., further amplified this doctrine as follows: (SCC pp.
      283-84, para 7)
D        “The nature and requirement of the procedure under
         Article 21
         7. Now, the question immediately arises as to what is the
         requirement of Article 14: what is the content and reach of the
         great equalising principle enunciated in this article? There can
E        be no doubt that it is a founding faith of the Constitution. It is
         indeed the pillar on which rests securely the foundation of our
         democratic republic. And, therefore, it must not be subjected
         to a narrow, pedantic or lexicographic approach. No attempt
         should be made to truncate its all-embracing scope and meaning,
         for to do so would be to violate its activist magnitude. Equality
F        is a dynamic concept with many aspects and dimensions and it
         cannot be imprisoned within traditional and doctrinaire limits.
         We must reiterate here what was pointed out by the majority
         in E.P. Royappa v. State of T.N. , namely, that: (SCC p. 38,
         para 85)
G        ‘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
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             215
                    [A. K. SIKRI, J.]

         according to political logic and constitutional law and is therefore   A
         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               B
         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.”                 C

                                                      (emphasis supplied)
      69. This was further clarified in A.L. Kalra v. Project and
Equipment Corpn., following Royappa and holding that arbitrariness is
a doctrine distinct from discrimination. It was held: (A.L. Kalra case,         D
SCC p. 328, para 19)
         “19. … It thus appears well settled that Article 14 strikes at
         arbitrariness in executive/administrative action because any
         action that is arbitrary must necessarily involve the negation of
         equality. One need not confine the denial of equality to a             E
         comparative evaluation between two persons to arrive at a
         conclusion of discriminatory treatment. An action per se
         arbitrary itself denies equal of (sic) protection by law. The
         Constitution Bench pertinently observed in Ajay Hasia case
         and put the matter beyond controversy when it said: (SCC p.
         741, para 16)                                                          F
         ‘16. … Wherever therefore, there is arbitrariness in State
         action whether it be of the legislature or of the executive or of
         an “authority” under Article 12, Article 14 immediately springs
         into action and strikes down such State action.’
                                                                                G
      This view was further elaborated and affirmed in D.S. Nakara v.
      Union of India . In Maneka Gandhi v. Union of India it was
      observed that Article 14 strikes at arbitrariness in State action
      and ensures fairness and equality of treatment. It is thus too late
      in the day to contend that an executive action shown to be arbitrary
      is not either judicially reviewable or within the reach of Article 14.”   H
216              SUPREME COURT REPORTS                                   [2018] 8 S.C.R.


A            The same view was reiterated in Babita Prasad v. State of Bihar
             , SCC at p. 285, para 31.”
             This doctrine is, thus, treated as a facet of both Articles 14 and 21
      of the Constitution.
            79. We would like to record that we have proceeded on the
B     premise that manifest arbitrariness also furnishes a ground on the basis
      on which a legislative enactment can be judicially reviewed. In the
      process, even the constitutional validity of Section 139AA of the Income
      Tax Act, 1961 is given a fresh look on the touchstone of this norm.
            Explaining the doctrine/principles on which the cases are
C     to be decided:
             80. Our discussion up to this stage, which gives a glimpse of the
      attack to the Aadhaar scheme and the Aadhaar Act, spearheaded by the
      petitioners, would reveal that in the forefront is the right to privacy and
      that forms the main pillar on which the edifice of arguments is substantially
D     constructed27. Inbuilt 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
E     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
F     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
G
      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 submissions on either side is that
      27
        There are few other incidental and ancillary issues raised by the petitioners as well,
      which we propose to discuss and deal with after answering these fundamental
H     submissions.
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            217
                        [A. K. SIKRI, J.]

both sides have placed strong reliance on different passages from this             A
very judgment to support their respective stances. A close reading of
this judgment brings about the following features:
       (i) Privacy has always been a natural right: The correct position
in this behalf has been established by a number of judgments starting
from Gobind v. State of M.P.28 Various opinions conclude that:                     B
      (a) privacy is a concomitant of the right of the individual to exercise
control over his or her personality.
      (b) Privacy is the necessary condition precedent to the enjoyment
of any of the guarantees in Part III.
                                                                                   C
      (c) The fundamental right to privacy would cover at least three
aspects – (i) intrusion with an individual’s physical body, (ii) informational
privacy, and (iii) privacy of choice.
       (d) One aspect of privacy is the right to control the dissemination
of personal information. And that every individual should have a right to          D
be able to control exercise over his/her own life and image as portrayed
in the world and to control commercial use of his/her identity.
         Following passages from different opinions reflect the aforesaid
proposition:
         Dr. D.Y. Chandrachud, J.:                                                 E
         42. Privacy is a concomitant of the right of the individual to exercise
         control over his or her personality. It finds an origin in the notion
         that there are certain rights which are natural to or inherent in a
         human being. Natural rights are inalienable because they are
         inseparable from the human personality. The human element in              F
         life is impossible to conceive without the existence of natural rights.
         In 1690, John Lockehad in his Second Treatise of Government
         observed that the lives, liberties and estates of individuals are as a
         matter of fundamental natural law, a private preserve. The idea
         of a private preserve was to create barriers from outside
         interference. In 1765, William Blackstone in his Commentaries             G
         on the Laws of England spoke of a “natural liberty”. There were,
         in his view, absolute rights which were vested in the individual by
         the immutable laws of nature. These absolute rights were divided
         into rights of personal security, personal liberty and property. The
28
     (1975) 2 SCC 148                                                              H
218      SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     right of personal security involved a legal and uninterrupted
      enjoyment of life, limbs, body, health and reputation by an individual.
                xx                xx                 xx
      46. Natural rights are not bestowed by the State. They inhere in
      human beings because they are human. They exist equally in the
B     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.
C     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
D     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.
E
      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. :
F
      521. In the Indian context, a fundamental right to privacy would
      cover at least the following three aspects:
      • Privacy that involves the person i.e. when there is some invasion
        by the State of a person’s rights relatable to his physical body,
G       such as the right to move freely;
      • Informational privacy which does not deal with a person’s body
        but deals with a person’s mind, and therefore recognises that an
        individual may have control over the dissemination of material
        that is personal to him. Unauthorised use of such information
H       may, therefore lead to infringement of this right; and
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           219
                   [A. K. SIKRI, J.]

   • The privacy of choice, which protects an individual’s autonomy A
     over fundamental personal choices.
     For instance, we can ground physical privacy or privacy relating
   to the body in Articles 19(1)(d) and (e) read with Article 21; ground
   personal information privacy under Article 21; and the privacy of
   choice in Articles 19(1)(a) to (c), 20(3), 21 and 25. The argument        B
   based on “privacy” being a vague and nebulous concept need not,
   therefore, detain us.
             xx                xx                 xx
   532. The learned counsel for the petitioners also referred to another     C
   important aspect of the right to privacy. According to the learned
   counsel for the petitioner this right is a natural law right which is
   inalienable. Indeed, the reference order itself, in para 12, refers to
   this aspect of the fundamental right contained. It was, therefore,
   argued before us that given the international conventions referred
   to hereinabove and the fact that this right inheres in every individual   D
   by virtue of his being a human being, such right is not conferred
   by the Constitution but is only recognised and given the status of
   being fundamental. There is no doubt that the petitioners are
   correct in this submission. However, one important roadblock in
   the way needs to be got over.                                             E
   533. In ADM, Jabalpur v. Shivakant Shukla, a Constitution
   Bench of this Court arrived at the conclusion (by majority) that
   Article 21 is the sole repository of all rights to life and personal
   liberty, and, when suspended, takes away those rights altogether.
   A remarkable dissent was that of Khanna, J. [ Khanna, J. was in           F
   line to be Chief Justice of India but was superseded because of
   this dissenting judgment. Nani Palkhivala in an article written on
   this great Judge’s supersession ended with a poignant sentence,
   “To the stature of such a man, the Chief Justiceship of India can
   add nothing.” Seervai, in his monumental treatise Constitutional
   Law of India had this to say:”53. If in this Appendix the dissenting      G
   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
                                                                             H
220      SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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
B
      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
C     reinforced by his reference to the mass murders of millions of
      Jews in Nazi concentration camps under an enacted law. However,
      the legal analysis in this Chapter confirms his conclusion though
      on different grounds from those which he has given.” (at Appendix
      p. 2229).] The learned Judge held: (SCC pp. 747 & 751, paras
      525 & 531)
D
         “525. The effect of the suspension of the right to move any
         court for the enforcement of the right conferred by Article 21,
         in my opinion, is that when a petition is filed in a court, the
         court would have to proceed upon the basis that no reliance
         can be placed upon that article for obtaining relief from the
E
         court during the period of emergency. Question then arises as
         to whether the rule that no one shall be deprived of his life or
         personal liberty without the authority of law still survives during
         the period of emergency despite the Presidential Order
         suspending the right to move any court for the enforcement of
F        the right contained in Article 21. The answer to this question is
         linked with the answer to the question as to whether Article 21
         is the sole repository of the right to life and personal liberty.
         After giving the matter my earnest consideration, I am of the
         opinion that Article 21 cannot be considered to be the sole
         repository of the right to life and personal liberty. The right to
G        life and personal liberty is the most precious right of human
         beings in civilised societies governed by the rule of law. Many
         modern Constitutions incorporate certain fundamental rights,
         including the one relating to personal freedom. According to
         Blackstone, the absolute rights of Englishmen were the rights
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           221
                   [A. K. SIKRI, J.]

     of personal security, personal liberty and private property. The        A
     American Declaration of Independence (1776) states that all
     men are created equal, and among their inalienable rights are
     life, liberty, and the pursuit of happiness. The Second
     Amendment to the US Constitution refers inter alia to security
     of person, while the Fifth Amendment prohibits inter alia
                                                                             B
     deprivation of life and liberty without due process, of law. The
     different Declarations of Human Rights and fundamental
     freedoms have all laid stress upon the sanctity of life and liberty.
     They have also given expression in varying words to the
     principle that no one shall be derived of his life or liberty without
     the authority of law. The International Commission of Jurists,          C
     which is affiliated to UNESCO, has been attempting with,
     considerable success 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
                                                                             D
     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.).                                                              E
                     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      F
     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          G
     an aspect of such right a part of the fundamental rights did not
     have the effect of exterminating the independent identity of
     such right and of making Article 21 to be the sole repository of
     that right. Its real effect was to ensure that a law under which
     a person can be deprived of his life or personal liberty should
                                                                             H
222        SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A          prescribe a procedure for such deprivation or, according to the
           dictum laid down by Mukherjea, J. in Gopalan case [A.K.
           Gopalan v. State of Madras, AIR 1950 SC 27 : 1950 SCR
           88] , such law should be a valid law not violative of fundamental
           rights guaranteed by Part III of the Constitution. Recognition
           as fundamental right of one aspect of the pre-constitutional
B
           right cannot have the effect of making things less favourable
           so far as the sanctity of life and personal liberty is concerned
           compared to the position if an aspect of such right had not
           been recognised as fundamental right because of the
           vulnerability of fundamental rights accruing from Article 359.
C          I am also unable to agree that in view of the Presidential Order
           in the matter of sanctity of life and liberty, things would be
           worse off compared to the state of law as it existed before the
           coming into force of the Constitution.”
                                                      (emphasis in original)
D     S. K. Kaul, J.:
      574. I have had the benefit of reading the exhaustive and erudite
      opinions of Rohinton F. Nariman and Dr D.Y. Chandrachud, JJ.
      The conclusion is the same, answering the reference that privacy
      is not just a common law right, but a fundamental right falling in
E     Part III of the Constitution of India. I agree with this conclusion
      as privacy is a primal, natural right which is inherent to an individual.
      However, I am tempted to set out my perspective on the issue of
      privacy as a right, which to my mind, is an important core of any
      individual existence.
F     xx                  xx                 xx
      620. I had earlier adverted to an aspect of privacy — the right to
      control dissemination of personal information. The boundaries that
      people establish from others in society are not only physical but
      also informational. There are different kinds of boundaries in
G     respect to different relations. Privacy assists in preventing
      awkward social situations and reducing social frictions. Most of
      the information about individuals can fall under the phrase “none
      of your business”. On information being shared voluntarily, the
      same may be said to be in confidence and any breach of
      confidentiality is a breach of the trust. This is more so in the
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            223
                   [A. K. SIKRI, J.]

   professional relationships such as with doctors and lawyers which          A
   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
                                                                              B
   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 <https://
   www.teachprivacy.com/10-reasons-privacy-matters/>.]
   xx                  xx                xx                                   C

   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             D
   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 publicity as “the right to grant the
   exclusive privilege of publishing his picture”.]”                          E
   xx                  xx                xx
   646. If the individual permits someone to enter the house it does
   not mean that others can enter the house. The only check and
   balance is that it should not harm the other individual or affect his
   or her rights. This applies both to the physical form and to               F
   technology. In an era where there are wide, varied, social and
   cultural norms and more so in a country like ours which prides
   itself on its diversity, privacy is one of the most important rights to
   be protected both against State and non-State actors and be
   recognised as a fundamental right. How it thereafter works out in          G
   its inter-play with other fundamental rights and when such
   restrictions would become necessary would depend on the factual
   matrix of each case. That it may give rise to more litigation can
   hardly be the reason not to recognise this important, natural,
   primordial right as a fundamental right.”
                                                                              H
224             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A            (ii) The sanctity of privacy lies in its functional relationship
      with dignity: Privacy ensures that a human being can lead a life of
      dignity by securing the inner recesses of the human personality from
      unwanted intrusions. While the legitimate expectation of privacy may
      vary from intimate zone to the private zone and from the private to the
      public arena, it is important to underscore that privacy is not lost or
B
      surrendered merely because the individual is in a public place. Further,
      privacy is a postulate of dignity itself. Also, privacy concerns arise when
      the State seeks to intrude into the body and the mind of the citizen. This
      aspect is discussed in the following manner:
             Dr. D.Y. Chandrachud, J. :
C            127. The submission that recognising the right to privacy is an
             exercise which would require a constitutional amendment and
             cannot be a matter of judicial interpretation is not an acceptable
             doctrinal position. The argument assumes that the right to privacy
             is independent of the liberties guaranteed by Part III of the
D            Constitution. There lies the error. The right to privacy is an element
             of human dignity. The sanctity of privacy lies in its functional
             relationship with dignity. Privacy ensures that a human being can
             lead a life of dignity by securing the inner recesses of the human
             personality from unwanted intrusion. Privacy recognises the
             autonomy of the individual and the right of every person to make
E            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
F            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
G            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.
H                       xx                  xx              xx
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           225
                   [A. K. SIKRI, J.]

   297. What, then, does privacy postulate? Privacy postulates the           A
   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
                                                                             B
   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             C
   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 choices, the inviolability of the personality would
                                                                             D
   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         E
   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.
                                                                             F
   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          G
   foundation of all liberty because it is in privacy that the individual
   can decide how liberty is best exercised. Individual dignity and
   privacy are inextricably linked in a pattern woven out of a thread
   of diversity into the fabric of a plural culture.
             xx                xx                 xx                         H
226      SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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
      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.
B
      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
C
      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
D     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. :

E     407. Undoubtedly, privacy exists, as the foregoing demonstrates,
      as a verifiable fact in all civilised societies. But privacy does not
      stop at being merely a descriptive claim. It also embodies a
      normative one. The normative case for privacy is intuitively simple.
      Nature has clothed man, amongst other things, with dignity and
      liberty so that he may be free to do what he will consistent with
F     the freedom of another and to develop his faculties to the fullest
      measure necessary to live in happiness and peace. The
      Constitution, through its Part III, enumerates many of these
      freedoms and their corresponding rights as fundamental rights.
      Privacy is an essential condition for the exercise of most of these
G     freedoms. Ex facie, every right which is integral to the
      constitutional rights to dignity, life, personal liberty and freedom,
      as indeed the right to privacy is, must itself be regarded as a
      fundamental right.


H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            227
                   [A. K. SIKRI, J.]

   408. Though he did not use the name of “privacy”, it is clear that         A
   it is what J.S. Mill took to be indispensable to the existence of the
   general reservoir of liberty that democracies are expected to
   reserve to their citizens. In the introduction to his seminal On
   Liberty (1859), he characterised freedom in the following way:
      “This, then, is the appropriate region of human liberty. It             B
      comprises, first, the inward domain of consciousness;
      demanding liberty of conscience, in the most
      comprehensive sense; liberty of thought and feeling;
      absolute freedom of opinion and sentiment on all subjects,
      practical or speculative, scientific, moral, or theological.
                                                                              C
      The liberty of expressing and publishing opinions may seem to
      fall under a different principle, since it belongs to that part of
      the conduct of an individual which concerns other people; but,
      being almost of as much importance as the liberty of thought
      itself, and resting in great part on the same reasons, is practically
      inseparable from it. Secondly, the principle requires liberty           D
      of tastes and pursuits; of framing the plan of our life to
      suit our own character; of doing as we like, subject to such
      consequences as may follow: without impediment from our
      fellow creatures, so long as what we do does not harm them,
      even though they should think our conduct foolish, perverse, or
                                                                              E
      wrong. Thirdly, from this liberty of each individual, follows the
      liberty, within the same limits, of combination among individuals;
      freedom to unite, for any purpose not involving harm to others:
      the persons combining being supposed to be of full age, and
      not forced or deceived.
      No society in which these liberties are not, on the whole,              F
      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                  G
      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.
                                                                              H
228      SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A        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
B
         Mill, On Liberty and Other Essays (Stefan Collini Edition,
         1989) (1859)]
                                                      (emphasis supplied)
      409. The first and natural home for a right to privacy is in Article
C     21 at the very heart of “personal liberty” and life itself. Liberty
      and privacy are integrally connected in a way that privacy is often
      the basic condition necessary for exercise of the right of personal
      liberty. There are innumerable activities which are virtually
      incapable of being performed at all and in many cases with dignity
      unless an individual is left alone or is otherwise empowered to
D     ensure his or her privacy. Birth and death are events when privacy
      is required for ensuring dignity amongst all civilised people. Privacy
      is thus one of those rights “instrumentally required if one is to
      enjoy” [ Laurence H. Tribe and Michael C. Dorf, “Levels of
      Generality in the Definition of Rights”, 57 U CHI L REV 1057 (1990)
E     at p. 1068.] rights specified and enumerated in the constitutional
      text.
      410. This Court has endorsed the view that “life” must mean
      “something more than mere animal existence” [Munn v. Illinois,
      1876 SCC OnLine US SC 4 : 24 L Ed 77 : 94 US 113 (1877) (Per
F     Field, J.) as cited in Kharak Singh, (1964) 1 SCR 332 at pp. 347-
      48] on a number of occasions, beginning with the Constitution
      Bench in Sunil Batra (1) v. Delhi Admn. [Sunil Batra v. Delhi
      Admn., (1978) 4 SCC 494 : 1979 SCC (Cri) 155] Sunil Batra
      [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979 SCC
      (Cri) 155] connected this view of Article 21 to the constitutional
G     value of dignity. In numerous cases, including Francis Coralie
      Mullin v. UT of Delhi [Francis Coralie Mullin v. UT of Delhi,
      (1981) 1 SCC 608 : 1981 SCC (Cri) 212] , this Court has viewed
      liberty as closely linked to dignity. Their relationship to the effect
      of taking into the protection of “life” the protection of “faculties
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          229
                   [A. K. SIKRI, J.]

   of thinking and feeling”, and of temporary and permanent                 A
   impairments to those faculties. In Francis Coralie
   Mullin[Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC
   608 : 1981 SCC (Cri) 212] , Bhagwati, J. opined as follows: (SCC
   p. 618, para 7)
      “7. Now obviously, the right to life enshrined in Article 21 cannot   B
      be restricted to mere animal existence. It means something
      much more than just physical survival. In Kharak Singh v.
      State of U.P. [Kharak Singh v. State of U.P., AIR 1963 SC
      1295 : (1963) 2 Cri LJ 329 : (1964) 1 SCR 332], Subba Rao, J.
      quoted with approval the following passage from the judgment
      of Field, J. in Munn v. Illinois [Munn v. Illinois, 1876 SCC          C
      OnLine US SC 4 : 24 L Ed 77 : 94 US 113 (1877)] to emphasise
      the quality of life covered 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              D
      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         E
      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              F
      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 deprivation       G
      be permanent or temporary and, furthermore, deprivation is
      not an act which is complete once and for all: it is a continuing
      act and so long as it lasts, it must be in accordance with
      procedure established by law. It is therefore clear that any
                                                                            H
230      SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A        act which damages or injures or interferes with the use of,
         any limb or faculty of a person, either permanently or even
         temporarily, would be within the inhibition of Article 21.”
                                                         (emphasis supplied)
      Privacy is, therefore, necessary in both its mental and physical
B     aspects as an enabler of guaranteed freedoms.
      411. It is difficult to see how dignity—whose constitutional
      significance is acknowledged both by the Preamble and by this
      Court in its exposition of Article 21, among other rights—can be
      assured to the individual without privacy. Both dignity and privacy
C     are intimately intertwined and are natural conditions for the birth
      and death of individuals, and for many significant events in life
      between these events. Necessarily, then, the right to privacy is an
      integral part of both “life” and “personal liberty” under Article 21,
      and is intended to enable the rights bearer to develop her potential
D     to the fullest extent made possible only in consonance with the
      constitutional values expressed in the Preamble as well as across
      Part III.
      R. F. Nariman, J:
      525. But most important of all is the cardinal value of fraternity
E     which assures the dignity of the individual. [ In 1834, Jacques-
      Charles Dupont de l’Eure associated the three terms liberty,
      equality and fraternity together in the Revue Républicaine, which
      he edited, as follows:”Any man aspires to liberty, to equality, but
      he cannot achieve it without the assistance of other men, without
F     fraternity.”Many of our decisions recognise human dignity as being
      an essential part of the fundamental rights chapter. For example,
      see Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC 526 at
      para 21, Francis Coralie Mullin v. UT of Delhi, (1981) 1 SCC
      608 at paras 6, 7 and 8, Bandhua Mukti Morcha v. Union of
      India, (1984) 3 SCC 161 at para 10, Maharashtra University of
G     Health Sciences v. Satchikitsa Prasarak Mandal, (2010) 3 SCC
      786 at para 37, Shabnam v. Union of India, (2015) 6 SCC 702
      at paras 12.4 and 14 and Jeeja Ghosh v. Union of India, (2016)
      7 SCC 761 at para 37.] The dignity of the individual encompasses
      the right of the individual to develop to the full extent of his potential.
      And this development can only be if an individual has autonomy
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            231
                   [A. K. SIKRI, J.]

   over fundamental personal choices and control over dissemination           A
   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
                                                                              B
   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. :                                                           C

   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:
                                                                              D
   618.1. In Robertson and Nicol on Media Law [ Geoffrey
   Robertson, QC and Andrew Nicol, QC, Media Law, 5th Edn., p.
   265.] it was observed:
      “Individuals have a psychological need to preserve an intrusion-
      free zone for their personality and family and suffer anguish           E
      and stress when that zone is violated. Democratic societies
      must protect privacy as part of their facilitation of individual
      freedom, and offer some legal support for the individual choice
      as to what aspects of intimate personal life the citizen is prepared
      to share with others. This freedom in other words springs from
      the same source as freedom of expression: a liberty that                F
      enhances individual life in a democratic community.”
   618.2. Lord Nicholls and Lord Hoffmann in their opinion in Naomi
   Campbell case[Campbell v. MGN Ltd., (2004) 2 AC 457 : (2004)
   2 WLR 1232 : (2004) UKHL 22 (HL)] recognised the importance
   of the protection of privacy. Lord Hoffman opined as under: (AC            G
   p. 472 H & 473 A-D, paras 50-51)
      “50. What human rights law has done is to identify private
      information as something worth protecting as an aspect of
      human autonomy and dignity. And this recognition has raised
                                                                              H
232     SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A       inescapably the question of why it should be worth protecting
        against the state but not against a private person. There may
        of course be justifications for the publication of private
        information by private persons which would not be available to
        the state — I have particularly in mind the position of the media,
        to which I shall return in a moment — but I can see no logical
B
        ground for saying that a person should have less protection
        against a private individual than he would have against the
        state for the publication of personal information for which there
        is no justification. Nor, it appears, have any of the other Judges
        who have considered the matter.
C       51. The result of these developments has been a shift in the
        centre of gravity of the action for breach of confidence when
        it is used as a remedy for the unjustified publication of personal
        information. … Instead of the cause of action being based
        upon the duty of good faith applicable to confidential personal
D       information and trade secrets alike, it focuses upon the
        protection of human autonomy and dignity — the right to control
        the dissemination of information about one’s private life and
        the right to the esteem and respect of other people.”
      618.3. Lord Nicholls opined as under: (Naomi Campbell case
E     [Campbell v. MGN Ltd., (2004) 2 AC 457 : (2004) 2 WLR 1232
      : (2004) UKHL 22 (HL)] , AC p. 464 D-F, 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
F       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
G       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.”
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          233
                   [A. K. SIKRI, J.]

   619. Privacy is also the key to freedom of thought. A person has         A
   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.:                                                         B
   372. History abounds with examples of attempts by Governments
   to shape the minds of subjects. In other words, conditioning the
   thought process by prescribing what to read or not to read; what
   forms of art alone are required to be appreciated leading to the
   conditioning of beliefs; interfering with the choice of people           C
   regarding the kind of literature, music or art which an individual
   would prefer to enjoy. [Stanleyv. Georgia, 1969 SCC OnLine
   US SC 78 : 22 L Ed 2d 542 : 394 US 557 (1969)”3. … that the
   mere private possession of obscene matter cannot constitutionally
   be made a crime.***9. … State has no business telling a man,
   sitting alone in his own house, what books he may read or what           D
   films he may watch. Our whole constitutional heritage rebels at
   the thought of giving Government the power to control men’s
   minds.” (SCC OnLine US SC paras 3 & 9)] Such conditioning is
   sought to be achieved by screening the source of information or
   prescribing penalties for making choices which Governments do            E
   not approve. [Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC
   615] Insofar as religious beliefs are concerned, a good deal of the
   misery our species suffer owes its existence to and centres around
   competing claims of the right to propagate religion. Constitution
   of India protects the liberty of all subjects guaranteeing [“25.
   Freedom of conscience and free profession, practice and                  F
   propagation of religion.—(1) Subject to public order, morality
   and health and to the other provisions of this Part, all persons are
   equally entitled to freedom of conscience and the right freely to
   profess, practice and propagate religion.(2) Nothing in this article
   shall affect the operation of any existing law or prevent the State      G
   from making any law—(a) regulating or restricting any economic,
   financial, political or other secular activity which may be associated
   with religious practice;(b) providing for social welfare and reform
   or the throwing open of Hindu religious institutions of a public
   character to all classes and sections of Hindus.Explanation I.—
                                                                            H
234      SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     The wearing and carrying of kirpans shall be deemed to be included
      in the profession of the Sikh religion. Explanation II.—In sub-
      clause (b) of clause (2), the reference to Hindus shall be construed
      as including a reference to persons professing the Sikh, Jaina or
      Buddhist religion, and the reference to Hindu religious institutions
      shall be construed accordingly.”] the freedom of conscience and
B
      right 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
C     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
D     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
E     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 individual’s rights to refuse life
      prolonging medical treatment or terminate his life is another freedom
F     which falls within the zone of the right to privacy. I am conscious
      of the fact that the issue is pending before this Court. But in various
      other jurisdictions, there is a huge debate on those issues though it
      is still a grey area. [ For the legal debate in this area in US, See
      Chapter 15.11 of American Constitutional Law by Laurence H.
      Tribe, 2nd Edn.] A woman’s freedom of choice whether to bear a
G     child or abort her pregnancy are areas which fall in the realm of
      privacy. Similarly, the freedom to choose either to work or not
      and the freedom to choose the nature of the work are areas of
      private decision-making process. The right to travel freely within
      the country or go abroad is an area falling within the right to privacy.
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                         235
                   [A. K. SIKRI, J.]

   The text of our Constitution recognised the freedom to travel           A
   throughout the country under Article 19(1)(d). This Court has
   already recognised that such a right takes within its sweep the
   right to travel abroad. [Maneka Gandhi v. Union of India, (1978)
   1 SCC 248] A person’s freedom to choose the place of his
   residence once again is a part of his right to privacy [Williams v.
                                                                           B
   Fears, 1900 SCC OnLine US SC 211 : 45 L Ed 186 : 179 US 270
   (1900)—”8. Undoubtedly the right of locomotion, the right to
   remove from one place to another according to inclination, is an
   attribute of personal liberty….” (SCC OnLine US SC para 8)]
   recognised by the Constitution of India under Article 19(1)(e)
   though the predominant purpose of enumerating the                       C
   abovementioned two freedoms in Article 19(1) is to disable both
   the federal and State Governments from creating barriers which
   are incompatible with the federal nature of our country and its
   Constitution. The choice of appearance and apparel are also
   aspects of the right to privacy. The freedom of certain groups of
                                                                           D
   subjects to determine their appearance and apparel (such as
   keeping long hair and wearing a turban) are protected not as a
   part of the right to privacy but as a part of their religious belief.
   Such a freedom need not necessarily be based on religious beliefs
   falling under Article 25. Informational traces are also an area
   which is the subject-matter of huge debate in various jurisdictions     E
   falling within the realm of the right to privacy, such data is as
   personal as that of the choice of appearance 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
                                                                           F
   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         G
   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
                                                                           H
236            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A           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, 1983 SCC OnLine AP
            90 : AIR 1983 AP 356. However, this case was later overruled by
B
            this Court in Saroj Rani v. Sudarshan Kumar Chadha, (1984) 4
            SCC 90 : AIR 1984 SC 1562.] The decision-making process
            regarding the freedom of association, freedoms of travel and
            residence are purely private and fall within the realm of the right
            to privacy. It is one of the most intimate decisions.
C           375. All liberal democracies believe that the State should not have
            unqualified authority to intrude into certain aspects of human life
            and that the authority should be limited by parameters
            constitutionally fixed. Fundamental rights are the only constitutional
            firewall to prevent State’s interference with those core freedoms
D           constituting liberty of a human being. The right to privacy is
            certainly one of the core freedoms which is to be defended. It is
            part of liberty within the meaning of that expression in Article 21.
            376. I am in complete agreement with the conclusions recorded
            by my learned Brothers in this regard.”
E            (iii) Privacy is intrinsic to freedom, liberty and dignity: The
      right to privacy is inherent to the liberties guaranteed by Part-III of the
      Constitution and privacy is an element of human dignity. The fundamental
      right to privacy derives from Part-III of the Constitution and recognition
      of this right does not require a constitutional amendment. Privacy is
F     more than merely a derivative constitutional right. It is the necessary
      basis of rights guaranteed in the text of the Constitution. Discussion in
      this behalf is captured in the following passages:
            Dr. D.Y. Chandrachud, J. :
            127. The submission that recognising the right to privacy is an
G           exercise which would require a constitutional amendment and
            cannot be a matter of judicial interpretation is not an acceptable
            doctrinal position. The argument assumes that the right to privacy
            is independent of the liberties guaranteed by Part III of the
            Constitution. There lies the error. The right to privacy is an element
            of human dignity. The sanctity of privacy lies in its functional
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          237
                   [A. K. SIKRI, J.]

   relationship with dignity. Privacy ensures that a human being can        A
   lead a life of dignity by securing the inner recesses of the human
   personality from unwanted intrusion. Privacy recognises the
   autonomy of the individual and the right of every person to make
   essential choices which affect the course of life. In doing so privacy
   recognises that living a life of dignity is essential for a human
                                                                            B
   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            C
   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
                                                                            D
   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         E
   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.] is correct.
   By the process of enumeration, constitutional courts merely give
   a name and specify the core of guarantees already present in the         F
   residue of constitutional liberty. Over time, the Supreme Court
   has been able to imply by its interpretative process that several
   fundamental rights including the right to privacy emerge out of
   expressly stated fundamental rights. In Unni Krishnan, J.P. v.
   State of A.P. [Unni Krishnan, J.P. v. State of A.P., (1993) 1            G
   SCC 645] , a Constitution Bench of this Court held that “several
   unenumerated rights fall within Article 21 since personal liberty is
   of widest amplitude” [Unni Krishnan, J.P. v. State of A.P., (1993)
   1 SCC 645 at p. 669, para 29] on the way to affirming the existence
   of a right to education. It went on to supply the following indicative
                                                                            H
238      SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A     list of such rights, which included the right to privacy: (SCC pp.
      669-70, para 30)
         “30. The following rights are held to be covered under Article
         21:
         1. The right to go abroad. Satwant Singh v. D. Ramarathnam
B        [Satwant Singh Sawhney v. D. Ramarathnam, (1967) 3 SCR
         525 : AIR 1967 SC 1836] .
         2. The right to privacy. Gobind v. State of M.P. [Gobind v.
         State of M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468] In this
         case reliance was placed on the American decision in Griswold
C        v. Connecticut [Griswold v. Connecticut, 1965 SCC OnLine
         US SC 124 : 14 L Ed 2d 510 : 85 S Ct 1678 : 381 US 479
         (1965)] , US at p. 510.
         3. The right against solitary confinement. Sunil Batra (1) v.
         Delhi Admn. [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494
D        : 1979 SCC (Cri) 155] , SCC at p. 545.
         4. The right against bar fetters. Charles Sobhraj v. Supt.,
         Central Jail [Charles Sobraj v. Supt., Central Jail, (1978)
         4 SCC 104 : 1978 SCC (Cri) 542].
         5. The right to legal aid. M.H. Hoskot v. State of
E
         Maharashtra [M.H. Hoskot v. State of Maharashtra, (1978)
         3 SCC 544 : 1978 SCC (Cri) 468].
         6. The right to speedy trial. Hussainara Khatoon (1) v. State
         of Bihar[Hussainara Khatoon (1) v. State of Bihar, (1980)
         1 SCC 81 : 1980 SCC (Cri) 23] .
F
         7. The right against handcuffing. Prem Shankar v. Delhi
         Admn. [Prem Shankar Shukla v. Delhi Admn., (1980) 3 SCC
         526 : 1980 SCC (Cri) 815]
         8. The right against delayed execution. T.V. Vatheeswaran v.
G        State of T.N. [T.V. Vatheeswaran v. State of T.N., (1983) 2
         SCC 68 : 1983 SCC (Cri) 342]
         9. The right against custodial violence. Sheela Barse v. State
         of Maharashtra [Sheela Barse v. State of Maharashtra,
         (1983) 2 SCC 96 : 1983 SCC (Cri) 353].
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          239
                   [A. K. SIKRI, J.]

      10. The right against public hanging. Attorney General of             A
      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].                                            B
      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,    C
   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       D
   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 rights have to be traced directly     E
   to those expressly stated in the fundamental rights chapter of the
   Constitution for such rights to receive protection, and privacy is
   not one of them. It will be noticed that the dignity of the individual
   is a cardinal value, which is expressed in the Preamble to the
   Constitution. Such dignity is not expressly stated as a right in the     F
   fundamental rights chapter, but has been read into the right to life
   and personal liberty. The right to live with dignity is expressly
   read into Article 21 by the judgment in Jolly George Varghesev.
   Bank of Cochin [Jolly George Varghese v. Bank of Cochin,
   (1980) 2 SCC 360] , at para 10. Similarly, the right against bar
   fetters and handcuffing being integral to an individual’s dignity        G
   was read into Article 21 by the judgment in Sunil Batra v. Delhi
   Admn. [Sunil Batra v. Delhi Admn., (1978) 4 SCC 494 : 1979
   SCC (Cri) 155] , at paras 192, 197-B, 234 and 241 and Prem
   Shankar Shukla v. Delhi Admn. [Prem Shankar Shukla v.
   Delhi Admn., (1980) 3 SCC 526 : 1980 SCC (Cri) 815] , at paras
                                                                            H
240            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           21 and 22. It is too late in the day to canvas that a fundamental
            right must be traceable to express language in Part III of the
            Constitution. As will be pointed out later in this judgment, a
            Constitution has to be read in such a way that words deliver up
            principles that are to be followed and if this is kept in mind, it is
            clear that the concept of privacy is contained not merely in personal
B
            liberty, but also in the dignity of the individual.”
             (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
C     privacy of the individual.
            Dr. D. Y. Chandrachud, J.:
            326. Privacy has both positive and negative content. The negative
            content restrains the State from committing an intrusion upon the
D           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
E     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. This proposition is described in the
F     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-
G
            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
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            241
                   [A. K. SIKRI, J.]

   and to buy goods and services. Individuals browse the web in               A
   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 trading has created a new platform for the
                                                                              B
   market in securities. Online music has refashioned the radio. Online
   books have opened up a new universe for the bibliophile. The old-
   fashioned travel agent has been rendered redundant by web portals
   which provide everything from restaurants to rest houses, airline
   tickets to art galleries, museum tickets to music shows. These are
   but a few of the reasons people access the internet each day of            C
   their lives. Yet every transaction of an individual user and every
   site that she visits, leaves electronic tracks generally without her
   knowledge. These electronic tracks contain powerful means of
   information which provide knowledge of the sort of person that
   the user is and her interests [See Francois Nawrot, Katarzyna
                                                                              D
   Syska and Przemyslaw Switalski, “Horizontal Application of
   Fundamental Rights — Right to Privacy on the Internet”, 9th
   Annual European Constitutionalism Seminar (May 2010),
   University of Warsaw, available at < http : // en.zpc.wpia.uw.edu.pl
   / w p - c o n t e n t / u p l o a d s / 2 0 1 0 / 0 4 /
   9_Horizontal_Application_of_Fundamental_Rights.pdf>.].                     E
   Individually, these information silos may seem inconsequential. In
   aggregation, they disclose the nature of the personality: food habits,
   language, health, hobbies, sexual preferences, friendships, ways
   of dress and political affiliation. In aggregation, information provides
   a picture of the being: of things which matter and those that do
                                                                              F
   not, of things to be disclosed and those best hidden.
              xx                xx                xx
   304. Data mining processes together with knowledge discovery
   can be combined to create facts about individuals. Metadata and
   the internet of things have the ability to redefine human existence        G
   in ways which are yet fully to be perceived. This, as Christina
   Moniodis states in her illuminating article, results in the creation
   of new knowledge about individuals; something which even she
   or he did not possess. This poses serious issues for the Court. In
   an age of rapidly evolving technology it is impossible for a Judge
                                                                              H
242      SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     to conceive of all the possible uses of information or its
      consequences:
         “… The creation of new knowledge complicates data privacy
         law as it involves information the individual did not possess
         and could not disclose, knowingly or otherwise. In addition, as
B        our State becomes an “information State” through increasing
         reliance on information—such that information is described as
         the “lifeblood that sustains political, social, and business
         decisions. It becomes impossible to conceptualize all of the
         possible uses of information and resulting harms. Such a
         situation poses a challenge for courts who are effectively asked
C        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
D     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
E     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
F     as having volunteered data but their activities of use and
      engagement result in the generation of vast amounts of data about
      individual lifestyles, choices and preferences. Yvonne McDermott
      speaks about the quantified self in eloquent terms:
      “… The rise in the so-called ‘quantified self’, or the self-tracking
G     of biological, environmental, physical, or behavioural information
      through tracking devices, Internet-of-things devices, social network
      data and other means (?Swan.2013) may result in information
      being gathered not just about the individual user, but about people
      around them as well. Thus, a solely consent-based model does
H     not entirely ensure the protection of one’s data, especially when
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                         243
                   [A. K. SIKRI, J.]

   data collected for one purpose can be repurposed for another.”          A
   [Id, at p. 4.]
             xx                xx               xx
   328. Informational privacy is a facet of the right to privacy. The
   dangers to privacy in an age of information can originate not only
   from the State but from non-State actors as well. We commend            B
   to the Union Government the need to examine and put into place
   a robust regime for data protection. The creation of such a regime
   requires a careful and sensitive balance between individual interests
   and legitimate concerns of the State. The legitimate aims of the
   State would include for instance protecting national security,          C
   preventing and investigating crime, encouraging innovation and
   the spread of knowledge, and preventing the dissipation of social
   welfare benefits. These are matters of policy to be considered by
   the Union Government while designing a carefully structured
   regime for the protection of the data. Since the Union Government
   has informed the Court that it has constituted a Committee chaired      D
   by Hon’ble Shri Justice B.N. Srikrishna, former Judge of this Court,
   for that purpose, the matter shall be dealt with appropriately by
   the Union Government having due regard to what has been set
   out in this judgment.
   S.K. Kaul, J.:                                                          E

   585. The growth and development of technology has created new
   instruments for the possible invasion of privacy by the State,
   including through surveillance, profiling and data collection and
   processing. Surveillance is not new, but technology has permitted
   surveillance in ways that are unimaginable. Edward Snowden              F
   shocked the world with his disclosures about global surveillance.
   States are utilising technology in the most imaginative ways
   particularly in view of increasing global terrorist attacks and
   heightened public safety concerns. One such technique being
   adopted by the States is “profiling”. The European Union                G
   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).]
                                                                           H
244      SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     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
B
      [ 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
C     in discrimination based on religion, ethnicity and caste. However,
      “profiling” can also be used to further public interest and for the
      benefit of national security.
      586. The security environment, not only in our country, but
      throughout the world makes the safety of persons and the State a
D     matter to be balanced against this right to privacy.
      587. 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.
      588. Further, in this digital age, individuals are constantly generating
E     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, with every
      click on the “world wide web”. We are stated to be creating an
      equal amount of information every other day, as humanity created
F     from the beginning of recorded history to the year 2003 — enabled
      by the “world wide web”. [ Michael L. Rustad, SannaKulevska,
      “Reconceptualizing the right to be forgotten to enable transatlantic
      data flow”, (2015) 28 Harv JL & Tech 349.]
      589. Recently, it was pointed out that “ “Uber”, the world’s largest
G     taxi company, owns no vehicles. “Facebook”, the world’s most
      popular media owner, creates no content. “Alibaba”, the most
      valuable retailer, has no inventory. And “Airbnb”, the world’s
      largest accommodation provider, owns no real estate. Something
      interesting is happening.” [ Tom Goodwin “The Battle is for
      Customer Interface”, <https://techcrunch.com/2015/03/03/in-the-
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                        245
                   [A. K. SIKRI, J.]

   age-of-disintermediation-the-battle-is-all-for-the-customer-           A
   interface/>.] “Uber” knows our whereabouts and the places we
   frequent. “Facebook” at the least, knows who we are friends
   with. “Alibaba” knows our shopping habits. “Airbnb” knows where
   we are travelling to. Social network providers, search engines, e-
   mail service providers, messaging applications are all further
                                                                          B
   examples of non-State actors that have extensive knowledge of
   our movements, financial transactions, conversations — both
   personal and professional, health, mental state, interest, travel
   locations, fares and shopping habits. As we move towards
   becoming a digital economy and increase our reliance on internet-
   based services, we are creating deeper and deeper digital footprints   C
   — passively and actively.
   590. These digital footprints and extensive data can be analysed
   computationally to reveal patterns, trends, and associations,
   especially relating to human behaviour and interactions and hence,
   is valuable information. This is the age of “big data”. The            D
   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     E
   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.          F
   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              G
   democracy can afford.
   592. Thus, there is an unprecedented need for regulation regarding
   the extent to which such information can be stored, processed
   and used by non-State actors. There is also a need for protection
   of such information from the State. Our Government was                 H
246      SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     successful in compelling Blackberry to give to it the ability to
      intercept data sent over Blackberry devices. While such
      interception may be desirable and permissible in order to ensure
      national security, it cannot be unregulated. [ Kadhim Shubber,
      “Blackberry gives Indian Government ability to intercept
      messages” published by Wired on 11-7-2013 <http://
B
      www.wired.co.uk/article/blackberry-india>.]
      593. The concept of “invasion of privacy” is not the early
      conventional thought process of “poking ones nose in another
      person’s affairs”. It is not so simplistic. In today’s world, privacy
      is a limit on the Government’s power as well as the power of
C     private sector entities. [ Daniel Solove, “10 Reasons Why Privacy
      Matters” published on 20-1-2014 <https://www.teachprivacy.com/
      10-reasons-privacy-matters/>.]
      594. George Orwell created a fictional State in Nineteen Eighty-
      Four. Today, it can be a reality. The technological development
D     today can enable not only the State, but also big corporations and
      private entities to be the “big brother”.
                xx                xx                xx
      629. The right of an individual to exercise control over his personal
E     data and to be able to control his/her own life would also encompass
      his right to control his existence on the internet. Needless to say
      that this would not be an absolute right. The existence of such a
      right does not imply that a criminal can obliterate his past, but that
      there are variant degrees of mistakes, small and big, and it cannot
      be said that a person should be profiled to the nth extent for all
F     and sundry to know.
      630. A high school teacher was fired after posting on her Facebook
      page that she was “so not looking forward to another [school]
      year” since the school district’s residents were “arrogant and
      snobby”. A flight attendant was fired for posting suggestive photos
G     of herself in the company’s uniform. [ Patricia Sánchez Abril,
      “Blurred Boundaries: Social Media Privacy and the Twenty-First-
      Century Employee”, 49 Am Bus LJ 63 at p. 69 (2012).] In the
      pre-digital era, such incidents would have never occurred. People
      could then make mistakes and embarrass themselves, with the
      comfort that the information will be typically forgotten over time.
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             247
                   [A. K. SIKRI, J.]

   631. The impact of the digital age results in information on the            A
   internet being permanent. Humans forget, 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
                                                                               B
   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             C
   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.                                                                   D
   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, “Reconceptualizing the right to be                   E
   forgotten to enable transatlantic data flow”, (2015) 28 Harv JL &
   Tech 349.] They should not be subjected to the consequences of
   their childish mistakes and naivety, their entire life. Privacy of
   children will require special protection not just in the context of
   the virtual world, but also the real world.
                                                                               F
   634. People change and an individual should be able to determine
   the path of his life and not be stuck only on a path of which he/she
   treaded initially. An individual should have the capacity to change
   his/her beliefs and evolve as a person. Individuals should not live
   in fear that the views they expressed will forever be associated
   with them and thus refrain from expressing themselves.                      G
   635. Whereas this right to control dissemination of personal
   information in the physical and virtual space should not amount to
   a right of total eraser of history, this right, as a part of the larger
   right to privacy, has to be balanced against other fundamental
                                                                               H
248            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A           rights like the freedom of expression, or freedom of media,
            fundamental to a democratic society.
            636. Thus, 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
B           the processing of personal data and on the free movement of
            such data, and repealing Directive No. 95/46/EC (General Data
            Protection Regulation).] has recognised what has been termed as
            “the right to be forgotten”. This does not mean that all aspects of
            earlier existence are to be obliterated, as some may have a social
            ramification. If we were to recognise a similar right, it would only
C           mean that an individual who is no longer desirous of his personal
            data to be processed or stored, should be able to remove it from
            the system where the personal data/information is no longer
            necessary, relevant, or is incorrect and serves no legitimate interest.
            Such a right cannot be exercised where the information/data is
D           necessary, for exercising the right of freedom of expression and
            information, for compliance with legal obligations, for the
            performance of a task carried out in public interest, on the grounds
            of public interest in the area of public health, for archiving purposes
            in the public interest, scientific or historical research purposes or
            statistical purposes, or for the establishment, exercise or defence
E           of legal 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)
F     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
G           the fulfilment 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
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            249
                   [A. K. SIKRI, J.]

   life or personal liberty except in accordance with the procedure           A
   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 zone of reasonableness mandated
   by Article 14, which is a guarantee against arbitrary State action.
                                                                              B
   The pursuit of a legitimate State aim ensures that the law does
   not suffer from manifest arbitrariness. Legitimacy, as a postulate,
   involves a value judgment. Judicial review does not reappreciate
   or second guess the value judgment of the legislature but is for
   deciding whether the aim which is sought to be pursued suffers
   from palpable or manifest arbitrariness. The third requirement             C
   ensures that the means which are adopted by the legislature are
   proportional to the 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
                                                                              D
   purpose of the law. Hence, the threefold requirement for a valid
   law arises out of the mutual interdependence 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               E
   restraints which apply to those freedoms.
   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       F
   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        G
   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
                                                                              H
250      SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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 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—
B
      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
C     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
D     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
E     the individual it could legitimately assert a valid State interest in
      the preservation of public health to design appropriate policy
      interventions on the basis of the data available to it.
      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
F     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
G     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.
                xx                xx               xx
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             251
                         [A. K. SIKRI, J.]

   325. Like other rights which form part of the fundamental freedoms          A
   protected by Part III, including the right to life and personal liberty
   under Article 21, privacy is not an absolute right. A law which
   encroaches upon privacy will have to withstand the touchstone of
   permissible restrictions on fundamental rights. In the context of
   Article 21 an invasion of privacy must be justified on the basis of
                                                                               B
   a law which stipulates a procedure which is fair, just and
   reasonable. The law must also 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 threefold
   requirement of (i) legality, which postulates the existence of law;
   (ii) need, defined in terms of a legitimate State aim; and (iii)            C
   proportionality which ensures a rational nexus between the objects
   and the means adopted to achieve them.
   S.A. Bobde, J. :
   426. There is no doubt that privacy is integral to the several
                                                                               D
   fundamental rights recognised by Part III of the Constitution and
   must be regarded as a fundamental right itself. The relationship
   between the right to privacy and the particular fundamental right
   (or rights) involved would depend on the action interdicted by a
   particular law. At a minimum, since privacy is always integrated
   with personal liberty, the constitutionality of the law which is alleged    E
   to have invaded into a rights bearer’s privacy must be tested by
   the same standards by which a law which invades personal liberty
   under Article 21 is liable to be tested. Under Article 21, the standard
   test at present is the rationality review expressed in Maneka
   Gandhi case [Maneka Gandhi v. Union of India, (1978) 1
                                                                               F
   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. :
                                                                               G
   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
                                                                               H
252      SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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
B
      Court for such legislation or subordinate legislation to pass muster
      under the said article. Each of the tests evolved by this Court, qua
      legislation or executive action, under Article 21 read with Article
      14; or Article 21 read with Article 19(1)(a) in the aforesaid
      examples must be met in order that State action pass muster. In
C     the ultimate analysis, the balancing act that is to be carried out
      between individual, societal and State interests must be left to the
      training and expertise of the judicial mind.
      S.K. Kaul, J. :
      638. The concerns expressed on behalf of the petitioners arising
D     from the possibility of the State infringing the right to privacy can
      be met by the test suggested for limiting the discretion of the
      State:
      “(i) The action must be sanctioned by law;

E     (ii) The proposed action must be necessary in a democratic society
      for a legitimate aim;
      (iii) The extent of such interference must be proportionate to the
      need for such interference;
      (iv) There must be procedural guarantees against abuse of such
F     interference.”
      Chelameswar, J.:
      377. It goes without saying that no legal right can be absolute.
      Every right has limitations. This aspect of the matter is conceded
      at the Bar. Therefore, even a fundamental right to privacy has
G
      limitations. The limitations are to be identified on case-to-case
      basis depending upon the nature of the privacy interest claimed.
      There are different standards of review to test infractions of
      fundamental rights. While the concept of reasonableness
      overarches Part III, it operates differently across Articles (even
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           253
                   [A. K. SIKRI, J.]

   if only slightly differently across some of them). Having                 A
   emphatically interpreted the Constitution’s liberty guarantee to
   contain a fundamental right to privacy, it is necessary for me to
   outline the manner in which such a right to privacy can be limited.
   I only do this to indicate the direction of the debate as the nature
   of limitation is not at issue here.
                                                                             B
   378. To begin with, the options canvassed for limiting the right to
   privacy include an Article 14 type reasonableness enquiry [A
   challenge under Article 14 can be made if there is an unreasonable
   classification and/or if the impugned measure is arbitrary. The
   classification is unreasonable if there is no intelligible differentia
   justifying the classification and if the classification has no rational   C
   nexus with the objective sought to be achieved. Arbitrariness,
   which was first explained at para 85 of E.P. Royappa v. State of
   T.N., (1974) 4 SCC 3 : 1974 SCC (L&S) 165 : AIR 1974 SC 555,
   is very simply the lack of any reasoning.] ; limitation as per the
   express provisions of Article 19; a just, fair and reasonable basis       D
   (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       E
   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      F
   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       G
   entirely traceable to rights other than Article 21 is bleak. Without
   discounting that possibility, it needs to be noted that Article 21 is
   the bedrock of the privacy guarantee. If the spirit of liberty
   permeates every claim of privacy, it is difficult, if not impossible,
   to imagine that any standard of limitation other than the one under
                                                                             H
254            SUPREME COURT REPORTS                                [2018] 8 S.C.R.


A           Article 21 applies. It is for this reason that I will restrict the available
            options to the latter two from the above described four.
            380. The just, fair and reasonable standard of review under Article
            21 needs no elaboration. It has also most commonly been used in
            cases dealing with a privacy claim hitherto. [District Registrar
B           and Collector v. Canara Bank, (2005) 1 SCC 496 : AIR 2005
            SC 186] , [State of Maharashtra v. Bharat Shanti Lal Shah,
            (2008) 13 SCC 5] Gobind [Gobind v. State of M.P., (1975) 2
            SCC 148 : 1975 SCC (Cri) 468] resorted to the compelling State
            interest standard in addition to the Article 21 reasonableness
            enquiry. From the United States, where the terminology of
C           “compelling State interest” originated, a strict standard of scrutiny
            comprises two things—a “compelling State interest” and a
            requirement of “narrow tailoring” (narrow tailoring means that
            the law must be narrowly framed to achieve the objective). As a
            term, “compelling State interest” does not have definite contours
D           in the US. Hence, it is critical that this standard be adopted with
            some clarity as to when and in what types of privacy claimsit
            is to be used. Only in privacy claims which deserve the strictest
            scrutiny is the standard of compelling State interest to be used.
            As for others, the just, fair and reasonable standard under Article
            21 will apply. When the compelling State interest standard is to be
E           employed, must depend upon the context of concrete cases.
            However, this discussion sets the ground rules within which a
            limitation for the right to privacy is to be found.”
             82. In view of the aforesaid detailed discussion in all the opinions
      penned by six Hon’ble Judges, it stands established, without any pale of
F     doubt, that privacy has now been treated as part of fundamental rights.
      The Court has held, in no uncertain terms, that privacy has always been
      a natural right which gives an individual freedom to exercise control
      over his or her personality. The judgment further affirms three aspects
      of the fundamental right to privacy, namely:
G             (i) intrusion with an individual’s physical body;
              (ii) informational privacy; and
              (iii) privacy of choice.

H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            255
                        [A. K. SIKRI, J.]

       83. As succinctly put by Nariman, J. first aspect involves the person       A
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
                                                                                   B
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         C
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 intrinsic of freedom,
liberty and dignity. Viewed in this manner, one can trace positive and
                                                                                   D
negative contents of privacy. The negative content restricts 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.
        84. A brief summation of the judgment on privacy would indicate
that privacy is treated as fundamental right. It is predicated on the basis        E
that privacy is a postulate of dignity and the concept of dignity can be
traced to the preamble of the Constitution as well as Article 21 thereof.
Further, privacy is considered as a subset of personal liberty thereby
accepting the minority opinion in Kharak Singh v. State of U.P. &
Ors.29 Another significant jurisprudential development of this judgment            F
is that right to privacy as a fundamental right is not limited to Article 21.
On the contrary, privacy resonates through the entirety of Part III of the
Constitution which pertains to fundamental rights and, in particular,
Articles 14, 19 and 21. Privacy is also recognised as a natural right
which inheres in individuals and is, thus, inalienable. In developing the
aforesaid concepts, the Court has been receptive to the principles in              G
international law and international instruments. It is a recognition of the
fact that certain human rights cannot be confined within the bounds of
geographical location of a nation but have universal application. In the
29
     AIR 1963 SC 1295
                                                                                   H
256              SUPREME COURT REPORTS                                    [2018] 8 S.C.R.


A     process, the Court accepts the concept of universalisation of human
      rights, including the right to privacy as a human right and the good practices
      in developing and understanding such rights in other countries have been
      welcomed. In this hue, it can also be remarked that comparative law
      has played a very significant role in shaping the aforesaid judgment on
      privacy in Indian context, notwithstanding the fact that such comparative
B
      law has only a persuasive value.
             85. The whole process of reasoning contained in different opinions
      of the Hon’ble Judges would, thus, reflect that the argument that it is
      difficult to precisely define the common denominator of privacy, was
      rejected. While doing so, the Court referred to various approaches in
C     formulating privacy30. 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,
D     Understanding Privacy31, 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
E     ‘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 information within
F     the private zone, and finally, privacy of intimate decision protects the
      freedom to act autonomously.
             (c) Classifying privacy as an ‘aggregation of rights’: This approach
      in classifying privacy as a right, as highlighted above, is not limited to one
      particular provision in the Chapter of Fundamental Rights under the
G     Constitution but is associated with amalgam of different but connected
      rights. In formulating this principle, the Court has referred to scholars
      like Roger Clarke, Anita Allen etc. It has led to the recognition of private
      30
         See the analysis of this judgment by the Centre for Internet and Society, https://cis-
          india.org/internet-governance/blog/the-fundamental-right-to-privacy-an-analysis
      31
         Daniel Solove, Understanding Privacy, Cambridge, Massachusetts: Harvard
H         University Press, 2008.
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             257
                     [A. K. SIKRI, J.]

spaces or zones as protected under the right to privacy (thereby extending       A
the ambit and scope of spatial privacy), informational privacy and
decisional autonomy.
       86. The important question that arises, which is directly involved
in these cases, is:
       What is the scope of the right to privacy and in what                     B
       circumstances such a right can be limited?
       87. Concededly, fundamental rights are not absolute. The
Constitution itself permits State to impose reasonable restrictions on these
rights under certain circumstances. Thus, extent and scope of the right
to privacy and how and when it can be limited by the State actions is            C
also to be discerned. As noted above, Nariman, J. has led the path by
observing that “when it comes to restrictions on this right, the drill of
various Articles to which the right relates must be scrupulously followed”.
Therefore, examination has to be from the point of view of Articles 14,
19 and 21 for the reason that right to privacy is treated as having intimate     D
connection to various rights in Part III and is not merely related to Article
21. Looked from this angle, the action of the State will have to be tested
on the touchstone of Article 14. This judgment clarifies that the
‘classification’ test adopted earlier has to be expanded and instead the
law/action is to be tested on the ground of ‘manifest arbitrariness’. This
aspect has already been discussed in detail under the caption ‘Scope of          E
Judicial Review’ above. When it comes to examining the ‘restrictions’
as per the provisions of Article 19 of the Constitution, the judgment
proceeds to clarify that a law which impacts dignity and liberty under
Article 21, as well as having chilling effects on free speech which is
protected by Article 19(1)(a), must satisfy the standards of judicial review     F
under both provisions. 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   G
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.

                                                                                 H
258             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A             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
B     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 State, particularly with the
      authentication of each transaction entered into by an individual, can be
      assimilated to construct a profile of such an individual and it particularly
      violates informational privacy. No doubt, there can be reasonable
C     restrictions on this right, which is conceded by the petitioners. It is,
      however, argued that right to privacy cannot be impinged without a just,
      fair and reasonable law. Therefore, in the first instance, any intrusion
      into the privacy of a person has to be backed by a law. Further, such a
      law, to be valid, has to pass the test of legitimate aim which it should
D     serve and also proportionality i.e. proportionate to the need for such
      interference. Not only this, the law in question must also provide
      procedural guarantees against abuse of such interference.
             90. At the same time, it can also be deduced from the reading of
      the aforesaid judgment that the reasonable expectation of privacy may
E     vary from the intimate zone to the private zone and from the private
      zone to the public arena. Further, privacy is not lost or surrendered
      merely because the individual is in a public place. For example, if a
      person was to post on Facebook vital information about himself, the
      same being in public domain, he would not be entitled to claim privacy
      right. This aspect is highlighted by some of the Hon’ble Judges as under:
F
            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
G           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
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           259
                   [A. K. SIKRI, J.]

   of the individual is associated over matters which can be kept            A
   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
                                                                             B
   private space in which the human 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              C
   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
                                                                             D
   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         E
   are personal to his or her life. Privacy attaches to the person and
   not to the place where it is associated. Privacy constitutes the
   foundation of all liberty because it is in privacy that the individual
   can decide how liberty is best exercised. Individual dignity and
   privacy are inextricably linked in a pattern woven out of a thread
                                                                             F
   of diversity into the fabric of a plural culture.
             xx                xx                 xx
   299. Privacy represents the core of the human personality and
   recognises the ability of each individual to make choices and to
   take decisions governing matters intimate and personal. Yet, it is        G
   necessary to acknowledge that individuals live in communities and
   work in communities. Their personalities affect and, in turn are
   shaped by their social environment. The individual is not a hermit.
   The lives of individuals are as much a social phenomenon. In their
   interactions with others, individuals are constantly engaged in
                                                                             H
260      SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     behavioural patterns and in relationships impacting on the rest of
      society. Equally, the life of the individual is being consistently shaped
      by cultural and social values imbibed from living in the community.
      This state of flux which represents a constant evolution of individual
      personhood in the relationship with the rest of society provides
      the rationale for reserving to the individual a zone of repose. The
B
      lives which individuals lead as members of society engender a
      reasonable expectation of privacy. The notion of a reasonable
      expectation of privacy has elements both of a subjective and
      objective nature. Privacy at a subjective level is a reflection of
      those areas where an individual desires to be left alone. On an
C     objective plane, privacy is defined by those constitutional values
      which shape the content of the protected zone where the individual
      ought to be left alone. The notion that there must exist a reasonable
      expectation of privacy ensures that while on the one hand, the
      individual has a protected zone of privacy, yet on the other, the
      exercise of individual choices is subject to the rights of others to
D
      lead orderly lives. For instance, an individual who possesses a
      plot of land may decide to build upon it subject to zoning regulations.
      If the building bye-laws define the area upon which construction
      can be raised or the height of the boundary wall around the property,
      the right to privacy of the individual is conditioned by regulations
E     designed to protect the interests of the community in planned
      spaces. Hence while the individual is entitled to a zone of privacy,
      its extent is based not only on the subjective expectation of the
      individual but on an objective principle which defines a reasonable
      expectation.
F                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
G     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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          261
                     [A. K. SIKRI, J.]

      the individual. This is evident from the emphasis in the European       A
      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:                                                          B
      “421. Shri Rakesh Dwivedi, appearing for the State of Gujarat,
      while referring to several judgments of the Supreme Court of the
      United States, submitted that only those privacy claims which
      involve a “reasonable expectation of privacy” be recognised as
      protected by the fundamental right. It is not necessary for the         C
      purpose of this case to deal with the particular instances of privacy
      claims which are to be recognised as implicating a fundamental
      right. Indeed, it would be premature to do so. The scope and
      ambit of a constitutional protection of privacy can only be revealed
      to us on a case-by-case basis.”
                                                                              D
        91. Though Nariman, J. did not subscribe to the aforesaid view in
totality, however, His Lordship has also given an example that if a person
has to post on Facebook vital information, the same being in public domain,
she would not be entitled to the claim of privacy right.
       92. We would also like to reproduce following discussion, in the       E
opinion authored by Nariman, J., giving the guidance as to how a law
has to be tested when it is challenged on the ground that it violates the
fundamental right to privacy:
      “...Statutory provisions that deal with aspects of privacy would
      continue to be tested on the ground that they would violate the         F
      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       G
      the individual right to privacy as well. A simple example would
      suffice. If a person was to paste on Facebook vital information
      about himself/herself, such information, being in the public domain,
      could not possibly be claimed as a privacy right after such
      disclosure. But, in pursuance of a statutory requirement, if certain
                                                                              H
262                SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A               details need to be given for the statutory purpose concerned, 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 on
                compelling grounds of public interest.”
B
             93. 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
C     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
D     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
E     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 India32, the concept of human
      dignity has been explained in much detail33. The concept of human
F     dignity developed in the said judgment was general in nature which is
      based on right to autonomy and right of choice and it has become a
      constitutional value. In the last 40 years or so, this Court has given
      many landmark judgments wherein concept of human dignity is recognised
      as an attribute of fundamental rights. In the earlier years, though the
G     meaning and scope of human dignity by itself was not expanded, this
      exercise has been undertaken in last few years. Earlier judgments have
      mentioned that human dignity is the intrinsic value of every human being
      and, in the process, a person’s autonomy as an attribute of dignity stands
      recognised. The judgments rendered in the last few years have
      32
           (2018) 5 SCC 1
H     33
           See paras 72-79 of the judgment
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            263
                        [A. K. SIKRI, J.]

attempted to provide jurisprudential basis to the concept of human dignity         A
itself.
       96. In National Legal Services Authority v. Union of India &
Ors.34 while recognising the right of transgenders of self determination
of their sex, the Court explained the contours of human dignity in the
following words:                                                                   B
         “106. The basic principle of the dignity and freedom of the
         individual is common to all nations, particularly those having
         democratic set up. Democracy requires us to respect and develop
         the free spirit of human being which is responsible for all progress
         in human history. Democracy is also a method by which we                  C
         attempt to raise the living standard of the people and to give
         opportunities to every person to develop his/her personality. It is
         founded on peaceful co-existence and cooperative living. If
         democracy is based on the recognition of the individuality and
         dignity of man, as a fortiori we have to recognize the right of a
         human being to choose his sex/gender identity which is integral to        D
         his/her personality and is one of the most basic aspect of self-
         determination, dignity and freedom. In fact, there is a growing
         recognition that the true measure of development of a nation is
         not economic growth; it is human dignity.
         107. More than 225 years ago, Immanuel Kant propounded the                E
         doctrine of free will, namely, the free willing individual as a natural
         law ideal. Without going into the detailed analysis of his aforesaid
         theory of justice (as we are not concerned with the analysis of his
         jurisprudence) what we want to point out is his emphasis on the
         “freedom” of human volition. The concepts of volition and freedom         F
         are “pure”, that is 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          G
         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
34
     (2014) 5 SCC 438
                                                                                   H
264               SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A              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.
B
               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 out
C              above, after the Second World War, in the form of the UN Charter
               and thereafter there is more emphasis on the attainment of individual
               perfection. In that united sense at least there is a revival of the
               natural law theory of justice. Blackstone, in the opening pages in
               his “Vattelian Fashion” said that the principal aim of society “is to
               protect individuals in the enjoyment of those absolute rights which
D
               were vested in them by the immutable laws of nature….”
             97. Thus, right of choice and right of self determination were
      accepted as facets of human dignity. It was also emphasised that in
      certain cases, like the case at hand (that of transgenders), recognition of
      this aspect of human dignity would yield happiness to the individuals and,
E     at the same time, also be in public good.
            98. Advancement in conceptualising the doctrine of human dignity
      took place in the case of Shabnam v. Union of India & Ors.35 wherein
      this Court has gone to the extent of protecting certain rights of death
      convicts by holding that they cannot be executed till they exhaust all
F     available constitutional and statutory remedies. In the process, the Court
      held as under:
               “”15. This right to human dignity has many elements. First and
               foremost, human dignity is the dignity of each human being ‘as a
               human being’. Another element, which needs to be highlighted,
G              in the context of the present case, is that human dignity is infringed
               if a person’s life, physical or mental welfare is harmed. It is in
               this sense torture, humiliation, forced labour, etc. all infringe on
               human dignity. It is in this context many rights of the accused
               derive from his dignity as a human being. These may include the
      35
           (2015) 6 SCC 702
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            265
                        [A. K. SIKRI, J.]

         presumption that every person is innocent until proven guilty; the        A
         right of the accused to a fair trial as well as speedy trial; right of
         legal aid, all part of human dignity. Even after conviction, when a
         person is spending prison life, allowing humane conditions in jail is
         part of human dignity. Prisons reforms or Jail reforms measures
         to make convicts a reformed person so that they are able to lead
                                                                                   B
         normal life and assimilate in the society, after serving the jail term,
         are motivated by human dignity jurisprudence.
         16. In fact, this principle of human dignity has been used frequently
         by Courts in the context of considering the death penalty itself.
         Way back in the year 1972, the United States Supreme Court
         kept in mind this aspect in the case of Furman v. Georgia 408             C
         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                D
         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           E
         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           F
         Supreme Court have gone to the extent of holding that capital
         punishment constitutes a serious impairment of human dignity and
         imposes a limitation on the essential content of the fundamental
         rights to life and human dignity and on that touchstone declaring
         that dignity as unconstitutional.”
                                                                                   G
       99. Next judgment in this line of cases would be that of Jeeja
Ghosh & Another v. Union of India & Ors. 36 wherein the Court,
while expanding the jurisprudential basis, outlined three models of dignity
which have been discussed by us above. These were referred to while
36
     (2016) 7 SCC 761
                                                                                   H
266            SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     explaining the normative role of human dignity, alongside, in the following
      manner:
            “37. The rights that are guaranteed to differently-abled persons
            under the 1995 Act, are founded on the sound principle of human
            dignity which is the core value of human right and is treated as a
B           significant facet of right to life and liberty. Such a right, now treated
            as human right of the persons who are disabled, has it roots in
            Article 21 of the Constitution. Jurisprudentially, three types of
            models for determining the content of the constitutional value of
            human dignity are recognised. These are: (i) Theological Models,
            (ii) Philosophical Models, and (iii) Constitutional Models. Legal
C           scholars were called upon to determine the theological basis of
            human dignity as a constitutional value and as a constitutional
            right. Philosophers also came out with their views justifying human
            dignity as core human value. Legal understanding is influenced
            by theological and philosophical views, though these two are not
D           identical. Aquinas and Kant discussed the jurisprudential aspects
            of human dignity based on the aforesaid philosophies. Over a period
            of time, human dignity has found its way through constitutionalism,
            whether written or unwritten. Even right to equality is interpreted
            based on the value of human dignity. Insofar as India is concerned,
            we are not even required to take shelter under theological or
E           philosophical theories. We have a written Constitution which
            guarantees human rights that are contained in Part III with the
            caption “Fundamental Rights”. One such right enshrined in Article
            21 is right to life and liberty. Right to life is given a purposeful
            meaning by this Court to include right to live with dignity. It is the
F           purposive interpretation which has been adopted by this Court to
            give a content of the right to human dignity as the fulfilment of the
            constitutional value enshrined 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
G           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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                               267
                     [A. K. SIKRI, J.]

          expressed in the three ways: first, the value of human dignity           A
          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
                                                                                   B
          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:
                                                                                   C
          “The first role of human dignity as a constitutional value is
          expressed in the approach that it comprises the foundation for
          all of the constitutional rights. Human dignity is the central
          argument for the existence of human rights. It is the rationale
          for them all. It is the justification for the existence of rights.
          According to Christoph Enders, it is the constitutional value            D
          that determines that every person has the right to have rights…
          The second role of human dignity as a constitutional value is to
          provide meaning to the norms of the legal system. According
          to purposive interpretation, all of the provisions of the
          Constitution, and particularly all of the rights in the constitutional   E
          bill of rights, are interpreted in light of human dignity…
          Lastly, human dignity as a constitutional value influences the
          development of the common law. Indeed, where common law
          is recognised, Judges have the duty to develop it, and if
          necessary, modify it, so that it expresses constitutional values,        F
          including the constitutional value of human dignity. To the extent
          that common law determines rights and duties between
          individuals, it might limit the human dignity of one individual
          and protect the human dignity of the other.”
       100. The concept was developed and expanded further in K.S.                 G
Puttaswamy. The Court held that privacy postulates the reservation of
a private space for an individual, described as the right to be let alone, as
a concept founded on autonomy of the individual. In this way, right to
privacy has been treated as a postulate of human dignity itself. While
defining so, the Court also remarked as under:
                                                                                   H
268             SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A           “298. Privacy of the individual is an essential aspect of dignity.
            Dignity has both an intrinsic and instrumental value. As an intrinsic
            value, human dignity is an entitlement or a constitutionally protected
            interest in itself. In its instrumental facet, dignity and freedom are
            inseparably intertwined, each being a facilitative tool to achieve
            the other. The ability of the individual to protect a zone of privacy
B
            enables the realisation of the full value of life and liberty... The
            family, marriage, procreation and sexual orientation are all integral
            to the dignity of the individual. Above all, the privacy of the individual
            recognises an inviolable right to determine how freedom shall be
            exercised...”
C            101. This concept of dignity took a leap forwarded in the case of
      Common Cause v. Union of India37 pertaining to passive euthanasia.
      Though this right was earlier recognised in Aruna Ramachandra
      Shanbaug v. Union of India & Ors.38, a totally new dimension was
      given to this right, based on freedom of choice which is to be given to an
D     individual accepting his dignity. There were four concurring opinions. In
      one of the opinions39, 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
E           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
F           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 the Constitution as “a sparkling vision of the
            supremacy of the human dignity of every individual”.
G           155. In fact, in Christine Goodwin v. United Kingdom the
            European Court of Human Rights, speaking in the context of the
            Convention for the Protection of Human Rights and Fundamental
            Freedoms, has gone to the extent of stating that “the very essence
      37
         (2018) 5 SCC 1
      38
         (2011) 4 SCC 454
H     39
         Rendered by Dipak Misra, CJI
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           269
                   [A. K. SIKRI, J.]

   of the Convention is respect for human dignity and human                  A
   freedom”. In the South African case of S. v. Makwanyane,
   O’Regan, J. stated in the Constitutional Court that “without dignity,
   human life is substantially diminished”.
             xx                xx                 xx
   157. The concept and value of dignity requires further elaboration        B
   since we are treating it as an inextricable facet of right to life that
   respects all human rights that a person enjoys. Life is basically
   self-assertion. In the life of a person, conflict and dilemma are
   expected to be normal phenomena. Oliver Wendell Holmes, in
   one of his addresses, quoted a line from a Latin poet who had             C
   uttered the message, “Death plucks my ear and says, Live—I am
   coming”. That is the significance of living. But when a patient
   really does not know if he/she is living till death visits him/her and
   there is constant suffering without any hope of living, should one
   be allowed to wait? Should she/he be cursed to die as life gradually
   ebbs out from her/his being? Should she/he live because of                D
   innovative medical technology or, for that matter, should he/she
   continue to live with the support system as people around him/her
   think that science in its progressive invention may bring about an
   innovative method of cure? To put it differently, should he/she be
   “Guinea pig” for some kind of experiment? The answer has to be            E
   an emphatic “No” because such futile waiting mars the pristine
   concept of life, corrodes the essence of dignity and erodes the
   fact of eventual choice which is pivotal to privacy.
             xx                xx                 xx
   159. In Mehmood Nayyar Azam v. State of Chhattisgarh, a                   F
   two-Judge Bench held thus: (SCC p. 6, para 1)
      “1. … Albert Schweitzer, highlighting on Glory of Life,
      pronounced with conviction and humility, “the reverence of
      life offers me my fundamental principle on morality”. The
      aforesaid expression may appear to be an individualistic               G
      expression of a great personality, but, when it is understood in
      the complete sense, it really denotes, in its conceptual
      essentiality, and connotes, in its macrocosm, the fundamental
      perception of a thinker about the respect that life commands.
      The reverence of life is insegregably associated with the dignity
                                                                             H
270      SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A        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”.
B
         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
C
      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
D     from the Constitution to consummate the changing ideology and
      convert it into a reality. The immediate needs are required to be
      addressed through the process of interpretation by the Court unless
      the same totally falls outside the constitutional framework or the
      constitutional interpretation fails to recognise such dynamism. The
E     Constitution Bench in Gian Kaur [Gian Kaur v. State of Punjab,
      (1996) 2 SCC 648 : 1996 SCC (Cri) 374] , as stated earlier,
      distinguishes attempt to suicide and abetment of suicide from
      acceleration of the process of natural death which has
      commenced. The authorities, we have noted from other
      jurisdictions, have observed the distinctions between the
F     administration of lethal injection or certain medicines to cause
      painless death and non-administration of certain treatment which
      can prolong the life in cases where the process of dying that has
      commenced is not reversible or withdrawal of the treatment that
      has been given to the patient because of the absolute absence of
G     possibility of saving the life. To explicate, the first part relates to
      an overt act whereas the second one would come within the sphere
      of informed consent and authorised omission. The omission of
      such a nature will not invite any criminal liability if such action is
      guided by certain safeguards. The concept is based on non-
      prolongation of life where there is no cure for the state the patient
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           271
                        [A. K. SIKRI, J.]

          is in and he, under no circumstances, would have liked to have          A
          such a degrading state. The words “no cure” have to be understood
          to convey that the patient remains in the same state of pain and
          suffering or the dying process is delayed by means of taking
          recourse to modern medical technology. It is a state where the
          treating physicians and the family members know fully well that
                                                                                  B
          the treatment is administered only to procrastinate the continuum
          of breath of the individual and the patient is not even aware that
          he is breathing. Life is measured by artificial heartbeats and the
          patient has to go through this undignified state which is imposed
          on him. The dignity of life is denied to him as there is no other
          choice but to suffer an avoidable protracted treatment thereby          C
          thus indubitably casting a cloud and creating a dent in his right to
          live with dignity and face death with dignity, which is a preserved
          concept of bodily autonomy and right to privacy. In such a stage,
          he has no old memories or any future hopes but he is in a state of
          misery which nobody ever desires to have. Some may also silently
                                                                                  D
          think that death, the inevitable factum 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      E
          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 opinion40, four facets of euthanasia were               F
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:                                                                           G

          “292. Aharon Barak, former Chief Justice of the Supreme Court
          of Israel, attributes two roles to the concept of human dignity as a
          constitutional value, which are:
40
     Rendered by A.K. Sikri, J.
                                                                                  H
272              SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A            292.1. Human dignity lays a foundation for all the human rights as
             it is the central argument for the existence of human rights.
             292.2. Human dignity as a constitutional value provides meaning
             to the norms of the legal system. In the process, one can discern
             that the principle of purposive interpretation exhorts us to interpret
B            all the rights given by the Constitution, in the light of the human
             dignity. In this sense, human dignity influences the purposive
             interpretation of the Constitution. Not only this, it also influences
             the interpretation of every sub-constitutional norm in the legal
             system. Moreover, human dignity as a constitutional value also
             influences the development of the common law.
C
                         xx                 xx                 xx
             295. Dworkin, being a philosopher-jurist, was aware of the idea
             of a Constitution and of a constitutional right to human dignity. In
             his book, Taking Rights Seriously, he noted that everyone who
D            takes rights seriously must give an answer to the question why
             human rights vis-à-vis the State exist. According to him, in order
             to give such an answer one must accept, as a minimum, the idea
             of human dignity. As he writes:
                 “Human dignity … associated with Kant, but defended by
E                philosophers of different schools, supposes that there are ways
                 of treating a man that are inconsistent with recognising him as
                 a full member of the human community, and holds that such
                 treatment is profoundly unjust.”41
             296. In his Book, Is Democracy Possible Here?42 Dworkin
F            develops two principles about the concept of human dignity.
             First principle regards the intrinsic value of every person viz.
             every person has a special objective value which value is not only
             important to that person alone but success or failure of the lives
             of every person is important to all of us. The second principle,
             according to Dworkin, is that of personal responsibility. According
G            to this principle, every person has the responsibility for success in
             his own life and, therefore, he must use his discretion regarding
             the way of life that will be successful from his point of view.
             Thus, Dworkin’s jurisprudence of human dignity is founded on
      41
        Ronald Dworkin, Taking Rights Seriously (A&C Black, 2013) 239.
      42
        Ronald Dworkin, Is Democracy Possible Here? Principles for a New Political Debate
H     (Princeton University Press, 2006)
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              273
                        [A. K. SIKRI, J.]

        the aforesaid two principles which, together, not only define the            A
        basis but the conditions for human dignity. Dworkin went on to
        develop and expand these principles in his book, Justice for
        Hedgehogs (2011)43.
        297. When speaking of rights, it is impossible to envisage it without
        dignity. In his pioneering and all-inclusive Justice for Hedgehogs,          B
        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             C
        success” in one’s own life and for creating that life “through a
        coherent narrative” that one has chosen44. According to Dworkin,
        these principles form the fundamental criteria supervising what
        we should do in order to live well.45 They further explicate the
        rights that individuals have against their political community,46 and        D
        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 any civilised society. It is what is constitutionally
        recognised in our country and for good reason. Living well is a
        moral responsibility of individuals; it is a continuing process that is
        not a static condition of character but a mode that an individual            E
        constantly endeavours to imbibe. A life lived without dignity, is not
        a life lived at all for living well implies a conception of human
        dignity which Dworkin interprets includes ideals of self-respect
        and authenticity.”
       103. In summation, it can be said that the concept of human dignity           F
dates back to thousands of years. Historically, human dignity, as a concept,
found its origin in different religions which is held to be an important
component of their theological approach. Jurists have given this approach
as ‘theological model’ of dignity. It is primarily based on the premise
that human beings are the creation of God and cannot be treated as                   G
43
    Harvard University Press, 2011.
44
    Kenneth W. Simons, “Dworkin’s Two Principle of Dignity: An Unsatisfactory Non-
Consequentialist Account of Interpersonal Moral Duties”, 90 Boston Law Rev. 715
(2010)]
 45
    Footnote 33 above.
 46
    Footnote 32 above.                                                               H
274             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     mere material beings. Human identity is more ethical than spiritual
      because man is creation of God; harm to a human being is harm to God.
      God, thus, wishes to grant human being recognition, dignity and authority.
      It is also religious belief that God is rational and determines his goals for
      himself. Likewise, human being created by God too is rational and
      determines his own goal. Therefore, man has freedom of will. A couple
B
      of centuries ago, philosophical approach was given to the conception of
      human dignity. This sphere was headed by German Philosopher Immanuel
      Kant whose moral theory is divided into two parts: ethics and right.
      According to Kant, a person acts ethically when he acts by force of a
      duty that a rational agent self-legislates onto his own will. Thus, he
C     talked of free will of the human being. For Kant, ethics include duties of
      oneself (for example - to develop one’s talents) and to others (for example
      - to contribute to their happiness). This ability is the human dignity of
      man. Philosophical approach, thus, is metaethical one, which is a journey
      from ‘human being’ and ‘remaining human’. This is explained by
      Professor Upendra Baxi as the relationship between ‘self’, ‘others’ and
D
      ‘society’. In this philosophical sense, dignity is ‘respect’ for an individual
      person based on the principle of freedom and capacity of making 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’.
      To put it philosophically, each individual has a right to live her life the
E     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
F
      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.
G            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.”

H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              275
                     [A. K. SIKRI, J.]

       104. Historically, a transition has taken place into the idea of dignity   A
by transforming the amalgam of theological approach (man as creation
of God deserving dignity) and philosophical approach based on morality,
by elevating human dignity as a constitutional norm attaching constitutional
value to it. It is a transition from ‘respect’ to ‘right’ by making respect
as enforceable right. The manner in which it has happened in India has
                                                                                  B
been traced above.
       105. From the aforesaid discussion, it follows that dignity as a
jurisprudential concept has now been well defined by this Court. Its
essential ingredients can be summarised as under:
       The basic principle of dignity and freedom of the individual is an         C
attribute of natural law which becomes the right of all individuals in a
constitutional democracy. Dignity has a central normative role as well
as constitutional value. This normative role is performed in three ways:
       First, it becomes basis for constitutional rights;
       Second, it serves as an interpretative principle for determining           D
the scope of constitutional rights; and,
       Third, it determines the proportionality of a statute limiting a
constitutional right. Thus, if an enactment puts limitation on a constitutional
right and such limitation is disproportionate, such a statute can be held to
be unconstitutional by applying the doctrine of proportionality.                  E
       106. As per Dworkin, there are two principles about the concept
of human dignity. First principle regards an ‘intrinsic value’ of every
person, namely, every person has a special objective value, which value
is not only important to that person alone but success or failure of the
lives of every person is important to all of us. It can also be described as      F
self respect which represents the free will of the person, her capacity to
think for herself and to control her own life. The second principle is that
of ‘personal responsibility’, which means every person has the
responsibility for success in her own life and, therefore, she must use
her discretion regarding the way of life that will be successful from her
                                                                                  G
point of view.
      107. Sum total of this exposition is well defined by Professor Baxi
by explaining that as per the aforesaid view, dignity is to be treated as
‘empowerment’ which makes a triple demand in the name of ‘respect’
for human dignity, namely:
                                                                                  H
276            SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A           (i) respect for one’s capacity 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.
B
            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’.
C
             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’.
D     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
E     following discussion:
            “103. A corollary of this development is that while so long the
            negative language of Article 21 and use of the word “deprived”
            was supposed to impose upon the State the negative duty not to
            interfere with the life or liberty of an individual without the sanction
F           of law, the width and amplitude of this provision has now imposed
            a positive obligation (Vincent Panikurlangara v. Union of India)
            upon the State to take steps for ensuring to the individual a better
            enjoyment of his life and dignity e.g.:
            (i) Maintenance and improvement of public health (Vincent
            Panikurlangara v. Union of India).
G
            (ii) Elimination of water and air pollution (M.C. Mehta v. Union
            of India).
            (iii) Improvement of means of communication (State of H.P. v.
            Umed Ram Sharma).
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              277
                        [A. K. SIKRI, J.]

          (iv) Rehabilitation of bonded labourers (Bandhua Mukti Morcha              A
          v. Union of India).
          (v) Providing human conditions in prisons (Sher Singh v. State of
          Punjab) and protective homes (Sheela Barse v. Union of India).
          (vi) Providing hygienic condition in a slaughterhouse (Buffalo
          Traders Welfare Assn. v. Maneka Gandhi).                                   B

          104. The common golden thread which passes through all these
          pronouncements is that Article 21 guarantees enjoyment of life
          by all citizens of this country with dignity, viewing this human right
          in terms of human development.
                                                                                     C
          105. The concepts of justice social, economic and political, equality
          of status and of opportunity and of assuring dignity of the individual
          incorporated in the Preamble, clearly recognise the right of one
          and all amongst the citizens of these basic essentials designed to
          flower the citizen’s personality to its fullest. The concept of equality
          helps the citizens in reaching their highest potential. Thus, the          D
          emphasis is on the development of an individual in all respects.”
       110. Christopher McCrudden, an Oxford Academic, in his article
‘Human Dignity and Judicial Interpretation of Human Rights’ 47
published in the European Journal of International Law on September
01, 2008 traces the evolution of concept of human dignity. In substance,             E
his analysis is that in the early stages of social evolution, human dignity
was understood as a concept associated with ‘status’. Only those
individuals were considered worthy of respect who enjoyed a certain
status within the social construct. Though one finds statements about
dignity of humans as human beings on account of the human being the                  F
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.                                         G
      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
47
     Published in the European Journal of International Law on September 01, 2008
                                                                                     H
278             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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
B           (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 Philosopher, said:
            “Republic is a State which best reconciles dignity of individual
C           with dignity of everyone.”
             113. Dignity extended to all citizens involves the idea of
      communitarism. A little earlier in 1798, Friedrich Schiller, a German poet
      of freedom and philosophy, brought out the connection between dignity
      and social condition in his work “Wurde des Menschen”. He said “(g)ive
D     him food and shelter; when you have covered his nakedness, dignity will
      follow by itself.” It was during the period that abolition of slavery became
      an important political agenda. Slavery was considered as an affront to
      human dignity.
              114. The Universal Declaration of Human Rights (UDHR)
E     recorded in the Preamble recognition of the inherent dignity and of the
      equal and inalienable rights of all members of the human family as the
      foundation of freedom, justice and peace. It included freedom from fear
      and want as amongst the highest aspirations of the common people.
      This is of course subject to resources of each State. But the realisation
F     is contemplated through national effort and international cooperation.
      Evidently, the UDHR adopts a substantive or communitarian concept of
      human dignity. The realisation of intrinsic worth of every human being,
      as a member of society through national efforts as an indispensable
      condition has been recognised as an important human right. Truly speaking,
      this is directed towards the deprived, downtrodden and have nots.
G
            115. 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 segment. Their human dignity is based on
      the socio-economic rights that are read in to the fundamental rights, as
      already discussed above.
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                 279
                        [A. K. SIKRI, J.]

       116. When we read socio-economic rights into human dignity, the                  A
community approach also assumes importance along with individualistic
approach to human dignity. It has now been well recognised that at its
core, human dignity contains three elements, namely, intrinsic value,
autonomy and community value. These are known as core values of
human dignity. These three elements can assist in structuring legal
                                                                                        B
reasoning and justifying judicial choices in ‘hard cases’. It has to be
borne in mind that human dignity is a constitutional principle, rather than
free standing fundamental rights. Insofar as intrinsic value is concerned,
here human 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:                                                            C

        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.48 The intrinsic value of all individuals results
in two basic postulates: anti-utilitarian and anti-authoritarian. The former            D
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.             E
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 to the
intrinsic value of each and every individual is equality before and under
the law. All individuals are of equal value and, therefore, deserve equal
respect and concern. This means not being discriminated against due to
race, colour, ethnic or national origin, sex, age or mental capacity (the               F
right to non-discrimination), as well as respect for cultural, religious, or
linguistic diversity (the right to recognition). Human dignity fulfills only
part of the content of the idea of equality, and in many situations it may
be acceptable to differentiate among people. In the contemporary world,
this is particularly at issue in cases involving affirmative action and the             G
rights of religious minorities. Intrinsic value also leads to the right to
integrity, both physical and mental. The right to physical integrity includes
the prohibition of torture, slave labour, and degrading treatment or
punishment. Discussions on life imprisonment, interrogation techniques,
48
   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.”).   H
280             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     and prison conditions take place within the scope of this right. The right
      to mental integrity comprises the right to personal honour and image and
      includes the right to privacy.
             (II) Autonomy:
             Autonomy is the ethical element of human dignity. It is the
B     foundation of the free will of individuals, which entitles them to pursue
      the ideals of living well and having a good life in their own ways. The
      central notion is that of self-determination: An autonomous person
      establishes the rules that will govern his or her life. Kantian conception
      of autonomy is the will governed by the moral law (moral autonomy).
C     Here, we are concerned with personal autonomy, which is value neutral
      and means the free exercise of the will according to one’s own values,
      interests, and desires. Autonomy requires the fulfillment of certain
      conditions, such as reason (the mental capacity to make informed
      decisions), independence (the absence of coercion, manipulation and
      severe want), and choice (the actual existence of alternatives).
D     Autonomy, thus, is the ability to make personal decisions and choices in
      life based on one’s conception of the good, without undue external
      influences. As for its legal implications, autonomy underlies a set of
      fundamental rights associated with democratic constitutionalism, including
      basic freedoms (private autonomy) and the right of political participation
E     (public autonomy).
                It would be pertinent 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,
F     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
G     “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
H     necessities, such as food, water, clothing, and shelter. The existential
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                   281
                        [A. K. SIKRI, J.]

minimum, therefore, is the core content of social and economic rights.                    A
This concept of minimum social right is protected by the Court, time and
again.
        (III) Community Value:
       This element of human dignity as community value relates to the
social dimension of dignity. The contours of human dignity are shaped                     B
by the relationship of the individual with others, as well as with the world
around him. English poet John Donne expresses the same sentiments
when he says ‘no man is an island, entire of itself’49. The individual,
thus, lives within himself, within a community, and within a state. His
personal autonomy is constrained by the values, rights, and morals of                     C
people who are just as free and equal as him, as well as by coercive
regulation. Robert Post identified three distinct forms of social order:
community (a “shared world of common faith and fate”), management
(the instrumental organization of social life through law to achieve specific
objectives), and democracy (an arrangement that embodies the purpose
of individual and collective self-determination. These three forms of                     D
social order presuppose and depend on each other, but are also in constant
tension.
       Dignity as a community value, therefore, emphasises the role of
the state and community in establishing collective goals and restrictions
on individual freedoms and rights on behalf of a certain idea of the good                 E
life. The relevant question here is in what circumstances and to what
degree should these actions be regarded as legitimate in a constitutional
democracy? The liberal predicament that the state must be neutral with
regard to different conceptions of the good in a plural society is not
incompatible, of course, with limitation resulting from the necessary                     F
coexistence of different views and potentially conflicting rights. Such
interferences, however, must be justified on grounds of a legitimate idea
of justice, an “overlapping consensus”50 that can be shared by most
individuals and groups. Whenever such tension arises, the task of balancing
is to be achieved by the Courts.
                                                                                          G
       We would like to highlight one more significant feature which the
issues involved in the present case bring about. It is the balancing of
49
    See John Donne, XVII. Mediation, in Devotions upon Emergent Occasions 107,
     108-09 (Uyniv. Of Mich. Press 1959) (1624)
50
   “Overlapping consensus” is a term coined by John Rawls that identifies basic ideas
     of justice that can be shared by supporters of different religious, political, and
                                                                                          H
     moral comprehensive doctrines.
282               SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     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
B
      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
C     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:
D
               (a) the action must be sanctioned by law;
              (b) the proposed action must be necessary in a democratic society
      for a legitimate aim; and
            (c) the extent of such interference must be proportionate to the
E     need for such interference.
            118. Doctrine of proportionality was explained by the Constitution
      Bench judgment of this Court in Modern Dental College and Research
      Centre & Ors. v. State of Madhya Pradesh & Ors.51. In the first
      instance, therefore, it would be apt to reproduce the said discussion:
F
               “60. ...Thus, while examining as to whether the impugned
               provisions of the statute and rules amount to reasonable restrictions
               and are brought out in the interest of the general public, 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
G              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
               conditions for limitation of a constitutionally protected right by a
               law to be constitutionally permissible. According to Aharon Barak
      51
           (2016) 7 SCC 353
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             283
                   [A. K. SIKRI, J.]

   (former Chief Justice, Supreme Court of Israel), there are four             A
   sub-components of proportionality which need to be satisfied
   [Aharon Barak, Proportionality: Constitutional Rights and
   Their Limitation (Cambridge University Press 2012)], a limitation
   of a constitutional right will be constitutionally permissible if:
   (i) it is designated for a proper purpose;                                  B
   (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                             C

   (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.
                                                                               D
   61. Modern theory of constitutional rights draws a fundamental
   distinction between the scope of the constitutional rights, and the
   extent of its protection. Insofar as the scope of constitutional rights
   is concerned, it marks the outer boundaries of the said rights and
   defines its contents. The extent of its protection prescribes the
   limitations on the exercises of the rights within its scope. In that        E
   sense, 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              F
   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
                                                                               G
   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
                                                                               H
284      SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     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 statute, is derived from an
      interpretation of the notion of democracy itself. Insofar as the
B
      Indian Constitution is concerned, democracy is treated as the basic
      feature of the Constitution and is specifically accorded a
      constitutional status that is recognised in the Preamble of the
      Constitution itself. It is also unerringly accepted that this notion of
      democracy includes human rights which is the cornerstone of
C     Indian democracy. Once we accept the aforesaid theory (and
      there cannot be any denial thereof), as a fortiori, it has also to be
      accepted that democracy is based on a balance between
      constitutional rights and the public interests. In fact, such a provision
      in Article 19 itself on the one hand guarantees some certain
      freedoms in clause (1) of Article 19 and at the same time empowers
D
      the State to impose reasonable restrictions on those freedoms in
      public interest. This notion accepts the modern constitutional theory
      that the constitutional rights are related. This relativity means that
      a constitutional licence to limit those rights is granted where such
      a limitation will be justified to protect public interest or the rights
E     of others. This phenomenon—of both the right and its limitation in
      the Constitution—exemplifies the inherent tension between
      democracy’s two fundamental elements. On the one hand is the
      right’s element, which constitutes a fundamental component of
      substantive democracy; on the other hand is the people element,
      limiting those very rights through their representatives. These two
F
      constitute a fundamental component of the notion of democracy,
      though this time in its formal aspect. How can this tension be
      resolved? The answer is that this tension is not resolved by
      eliminating the “losing” facet from the Constitution. Rather, the
      tension is resolved by way of a proper balancing of the competing
G     principles. This is one of the expressions of the multi-faceted nature
      of democracy. Indeed, the inherent tension between democracy’s
      different facets is a “constructive tension”. It enables each facet
      to develop while harmoniously coexisting with the others. The
      best way to achieve this peaceful coexistence is through balancing
      between the competing interests. Such balancing enables each
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           285
                   [A. K. SIKRI, J.]

   facet to develop alongside the other facets, not in their place. This     A
   tension between the two fundamental aspects—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 each
   other. This balancing is to be done keeping in mind the relative
   social values of each competitive aspects when considered in
                                                                             B
   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,   C
   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       D
   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         E
      satisfied. First, the objective, which the measures, responsible
      for a limit on a Charter right or freedom are designed to serve,
      must be “of” sufficient importance to warrant overriding a
      constitutional protected right or freedom … Second … the party
      invoking Section 1 must show that the means chosen are
      reasonable and demonstrably justified. This involves “a form           F
      of proportionality test…” Although the nature of the
      proportionality test will vary depending on the circumstances,
      in each case courts will be required to balance the interests of
      society with those of individuals and groups. There are, in my
      view, three important components of a proportionality test. First,     G
      the measures adopted must be … rationally connected to the
      objective. Second, the means … should impair “as little as
      possible” the right or freedom in question … Third, there must
      be a proportionality between the effects of the measures which
      are responsible for limiting the Charter right or freedom, and
                                                                             H
286      SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A        the objective which has been identified as of “sufficient
         importance”. The more severe the deleterious effects of a
         measure, the more important the objective must be if the
         measure is to be reasonable and demonstrably justified in a
         free and democratic society.’
B     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.
C
      65. We may unhesitatingly remark that this doctrine of
      proportionality, explained hereinabove in brief, is enshrined in Article
      19 itself when we read clause (1) along with clause (6) thereof.
      While defining as to what constitutes a reasonable restriction, this
      Court in a plethora of judgments has held that the expression
D     “reasonable restriction” seeks to strike a balance between the
      freedom guaranteed by any of the sub-clauses of clause (1) of
      Article 19 and the social control permitted by any of the clauses
      (2) to (6). It is held that the expression “reasonable” connotes
      that the limitation imposed on a person in the enjoyment of the
E     right should not be arbitrary or of an excessive nature beyond
      what is required in the interests of public. Further, in order to be
      reasonable, 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
F     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
G     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
H     public.
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                 287
                        [A. K. SIKRI, J.]

        (3) In order to judge the reasonableness of the restrictions, no                A
        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 and the surrounding circumstances.
                                                                                        B
        (4) A just balance has to be struck between the restrictions imposed
        and the social control envisaged by Article 19(6).
        5) Prevailing social values as also social needs which are intended
        to be satisfied by the restrictions.
        (6) There must be a direct and proximate nexus or reasonable                    C
        connection between the restrictions imposed and the object sought
        to be achieved. If there is a direct nexus between the restrictions,
        and the object of the Act, then a strong presumption in favour of
        the constitutionality of the Act will naturally arise.”
                                                           (emphasis in original)       D
       119. We may note at this stage that there is a growing awareness
of the practical importance of the principle of proportionality for rights
adjudication and it has sparked a wave of academic scholarship as well.
The first integrates the doctrine of proportionality into a broader
theoretical framework. It is propounded by Robert Alexy, premised on                    E
the theory of rights as principles and optimisation requirements52. For
Alexy, all norms are either rules or principles. Constitutional rights are
principles, which means that they must be realised to the greatest extent
factually and legally possible. For Alexy, the principle of proportionality
follows logically from the nature of constitutional rights as principles.               F
On the other hand, Mattias Kumm presented his theory of rights
adjudication as Socratic contestation, with proportionality principle at its
centre. As per Kumm, proportionality is the doctrinal tool which allows
Judges to assess the reasonableness or plausibility, of a policy and thus
to determine whether it survives Socratic contestation53. Recently, Kai
52
   Robert Alexy, A Theory of Constitutional Rights, (Oxford, Oxford University Press,   G
    2002)
54
   M Kumm, ‘The Idea of Socratic Contestation and the Right to Justification: The
    Point and Purpose of Rights-Based Proportionality Review’ (2010) 4 Law & Ethics
    of Human Rights 141; M Kumm, ‘Institutionalising Socratic Contestation: The
    Rationalist Human Rights Paradigm, Legitimate Authority and the point of Judicial
    Review’ (2007) 1 European Journal of Legal Studies.
                                                                                        H
288              SUPREME COURT REPORTS                                   [2018] 8 S.C.R.


A     Moller has proposed another theory, which is an autonomy-based theory
      of what he calls ‘the global model of constitutional rights’, at the core of
      which lies the obligation of the State to take the autonomy interests of
      every person adequately into account54. 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
B
      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
C     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
D     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 goal stage); it must, secondly, be a suitable means of furthering
E     this goal (suitability or rational connection stage); thirdly, there must not
      be any less restrictive but equally effective alternative (necessity stage);
      and fourthly, the measure must not have a disproportionate impact on
      the right-holder (balancing stage).
            121. Many issues arise while undertaking the exercise of
F     proportionality inquiry. At legitimate goal stage, question arises as to
      what does it mean to speak of the goal of a policy, and what does it
      mean to require a goal to be legitimate?55 With regard to the suitability
      and necessity stages, some of the open issues are how to deal with
      empirical uncertainty: should this lead to wide-ranging deference to the
      54
         K Moller, The Global Model of Constitutional Rights (Oxford, Oxford University
G         Press, 2012).
      55
         On this issue there is a detailed discussion in M Kumm, ‘Political Liberalism and the
          Structure of Rights: On the Place and Limits of the Proportionality Requirement’ in
          Pavlakos (ed), Law, Rights and Discourse: The Legal Philosophy of Robert Alexy
          (Oxford, Hart Publishing, 2007) 131; Moller, the Global Model of Constitutional
          Rights (Oxford, Oxford University Press, 2012) ch 7.
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                    289
                        [A. K. SIKRI, J.]

elected branches?56 At the balancing stage, we have to ask the question                    A
of what it means to say that a right is ‘balanced’ against a competing
right or public interest. One remarkable feature of the German test is
that it tends to push most of the important issues into the last stage, viz.,
the balancing stage. At the legitimate goal stage, any goal that is legitimate
will be accepted. At the suitability stage, even a marginal contribution to
                                                                                           B
the achievement of the goal will suffice. At the necessity stage, it is very
rare for a policy to fail because less restrictive alternatives normally
come with some disadvantage and cannot, therefore, be considered
equally effective. Thus, the balancing stage dominates the legal analysis
and is usually determinative of the outcome.
       122. In contrast, Canadian Supreme Court has chartered different                    C
course while using proportionality test. R. v. Oakes57 (popularly known
as Oakes test), has held that the objective must be ‘of sufficient importance
to warrant overriding a constitutionally protected right 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                D
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                   E
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                        F
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 German test leads to a practice of constitutional
review with two connected problems: first, as pointed about above, usually                 G
almost all the moral work is done at the balancing stage, arguably rendering
the earlier stages largely useless and throwing doubt on the truth of the
56
   As a proposal of how to deal with uncertainty, see Alexy’s ‘Second Law of Balancing’,
    which he proposes in the Postscript to A Theory of Constitutional Rights (Oxford,
    Oxford University Press, 2002).
57
   (1986) 1 SCR 103                                                                        H
290              SUPREME COURT REPORTS                                 [2018] 8 S.C.R.


A     popular argument that proportionality is a valuable doctrine partly because
      it structures the analysis of rights issues in a meaningful way. Secondly,
      the balancing act at the final stage is often carried out in an impressionistic
      fashion which seems to be largely unguided by principle and thus opens
      the door for subjective, arbitrary and unpredictable judgments encroaching
      on what ought to be the proper domain of the democratic legislature.
B
      These concerns can, however, be addressed. According to Bilchitz58,
      first concern can be addressed by focusing on the necessity stage of the
      test. He takes issue with both the German test – according to which
      almost all policies are necessary because any alternative policy will usually
      have some disadvantage which means that it cannot be considered equally
C     effective – and the Canadian minimal impairment test – which, taken
      seriously, narrows down the range of constitutionally acceptable policies
      far too much: ‘minimal impairment’ can be read as insisting that only one
      measure could pass constitutional scrutiny, namely the measure which
      impairs the right least.59 So the alternatives seem to be either to construct
      the necessity (minimal impairment) test as filtering out almost nothing or
D
      to allow only one policy, thus rendering the elected branches partly
      superfluous. In order to preserve a meaningful but not unduly strict role
      for the necessity stage, Bilchitz proposes the following inquiry. First, a
      range of possible alternatives to the measure employed by the
      Government must be identified. Secondly, the effectiveness of these
E     measures must be determined individually; the test here is not whether
      each respective measure realises the 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
F
      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
G     can be taken care of by avoiding ‘ad-hoc balancing’ and instead
      58
         ‘Necessity and Proportionality: Towards A Balanced Approach?’, Hart Publishing,
          Oxford and Portland, Oregon, 2016.
      59
         On the various problems which the Canadian Supreme Court created for itself because
          of its early unfortunate statements on proportionality see S Choudhry, ‘So What Is
          the Real Legacy of Oakes? Two Decades of Proportionality Analysis under the
H         Canadian Charter’s Section 1’ (2006) 34 Supreme Court Law Review 501.
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                               291
                     [A. K. SIKRI, J.]

proceeding on some ‘bright-line rules’ i.e. by doing the act of balancing          A
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
                                                                                   B
the test to be applied is whether the law satisfies ‘public interest’.
Nariman, J., on the other hand, pointed out that the Right to Information
Act, 2005 has provided for personal information being disclosed to third
parties subject to ‘larger public interest’ being satisfied. If this test is
applied, the result is that one would be entitled to invoke ‘large public
interest’ in lieu of ‘legitimate state aim’ or ‘legitimate state interest’, as a   C
permissible restriction on a claim to privacy of an individual – a more
lenient test. However, since judgment of Chandrachud, J. is on behalf
of himself and three other Judges and S.K. Kaul, J. has also virtually
adopted the same test, we can safely adopt the test of ‘legitimate state
interest’ as the majority opinion, instead of applying the test of ‘compelling
                                                                                   D
state interest’.
      125. In Modern Dental College & Research Centre, four sub
components or proportionality which need to be satisfied were taken
note of. These are:
       (a) A measure restricting a right must have a legitimate goal               E
       (legitimate goal stage).
       (b) It must be a suitable means of furthering this goal (suitability
       or rationale connection stage).
       (c) There must not be any less restrictive but equally effective
       alternative (necessity stage).                                              F
       (d) The measure must not have a disproportionate impact on the
       right holder (balancing stage).
        126. This has been approved in K.S. Puttaswamy as well.
Therefore, the aforesaid stages of proportionality can be looked into and
                                                                                   G
discussed. Of course, while undertaking this exercise it has also to be
seen that the legitimate goal must be of sufficient importance to warrant
overriding a constitutionally protected right or freedom and also that
such a right impairs freedom as little as possible. This Court, in its
earlier judgments, applied German approach while applying proportionality
                                                                                   H
292            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     test to the case at hand. We would like to proceed on that very basis
      which, however, is tempered with more nuanced approach as suggested
      by Bilchitz. This, in fact, is the amalgam of German and Canadian
      approach. We feel that the stages, as mentioned in Modern Dental
      College & Research Centre and recapitulated above, would be the
      safe method in undertaking this exercise, with focus on the parameters
B
      as suggested by Bilchitz, as this projects an ideal approach that need to
      be adopted.
            Issues:
            127. After setting the tone of the case, it is now time to specify
C     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
D                 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?
E
            (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}
F
            (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:
G           (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)
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                      293
                   [A. K. SIKRI, J.]

   (v) Section 3                                                        A
   (vi) Section 5
   (vii) Section 6
   (viii) Section 8
   (ix) Section 9                                                       B
   (x) Sections 11 to 23
   (xi) Sections 23 and 54
   (xii) Section 23(2)(g) read with Chapter VI & VII – Regulations
       27 to 32                                                         C
   (xiii) Section 29
   (xiv) Section 33
   (xv) Section 47
   (xvi) Section 48                                                     D
   (xvii) Section 57
   (xviii) Section 59
   (5) Whether the Aadhaar Act defies the concept of Limited
      Government, Good Governance and Constitutional Trust?             E
   (6) Whether the Aadhaar Act could be passed as ‘Money Bill’
      within the meaning of Article 110 of the Constitution?
   (7) Whether Section 139AA of the Income Tax Act, 1961 is violative
       of right to privacy and is, therefore, unconstitutional?
                                                                        F
   (8) Whether Rule 9(a)(17) of the Prevention of Money Laundering
       (Maintenance of Records) Rules, 2005 and the notifications
       issued thereunder, which mandate linking of Aadhaar with bank
       accounts, are unconstitutional?
   (9) Whether Circular dated March 23, 2017 issued by the              G
      Department of Telecommunications mandating linking of mobile
      number with Aadhaar is illegal and unconstitutional?
   (10) Whether certain actions of the respondents are in
      contravention of the interim orders passed by the Court, if so,
      the effect thereof?
                                                                        H
294             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A           128. We now proceed to discuss the arguments on these grounds,
      as advanced by the petitioners, reply thereto and our conclusions
      thereupon.
             Surveillance:
             Whether the Aadhaar Project creates or has tendency to create
B            surveillance state and is, thus, unconstitutional on this
             ground?
             Education took us from thumb impression to signature
             Technology has taken us from signature to thumb impression,
C            again
             129. It may be remarked at the outset that the argument of
      surveillance draws sustenance, to a larger extent, from privacy rights as
      well. Therefore, the arguments which were addressed under this caption
      have traces of privacy also. However, these are discussed in the context
D     of surveillance state argument.
             130. It was submitted that Aadhaar project creates the architecture
      of a ‘cradle to grave’ surveillance state and society. This means that it
      enables the State to profile citizens, track their movements, assess their
      habits and silently influence their behaviour throughout their lives. Over
      time, the profiling enables the State to stifle dissent and influence political
E
      decision making. The architecture of the project comprises 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
F     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
G
      (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
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            295
                        [A. K. SIKRI, J.]

failed or was successful, reason for such failure, requesting entities’            A
Internet Protocol (IP) address, date and time of authentication, device
ID and its unique ID of authentication device which can be used to
locate the individual.
       132. Authentication of Aadhaar number enables tracking, tagging
and profiling of individuals as the IP Address of the authentication device        B
gives an idea of its geographical location (determinable within the range
of 2 kilometres), country, city, region, pin code/zip code). Mr. Divan
submits that an individual is on an electronic leash, tethered to a central
data repository that has the architecture to track all activities of an
individual. The Aadhaar Act creates a database of all Indian residents
and citizens with their core biometric information, demographic information        C
and meta data. In light of the enormous potential of information,
concentration of information in a single entity, i.e., the Authority, enabling
easier access to aggregated information puts the State in a position to
wield enormous power. Given that with advancements in technology,
such information can affect every aspect of an individual’s personal,              D
professional, religious and social life, such power is a threat to individual
freedoms guaranteed under Articles 19(1)(a) to 19(1)(g) of the
Constitution and other fundamental rights guaranteed under Article 21
(Right to informational privacy) and Article 25 of the Constitution. It
was submitted that the Aadhaar Act treats the entire populace of the
country as potential criminals ignoring the necessity to balance the State’s       E
mandate of protection against crime with the right to personal bodily
integrity which is envisaged under Article 21 read with Article 20(3) of
the Constitution. It does not require the collection of data to have a
nexus with a crime. Mr. Sibal submits that in the decision in Selvi &
Ors. v. State of Karnataka60, this Court has held:                                 F
         “The theory of interrelationship of rights mandates that the right
         against self-incrimination should also be read as a component of
         “personal liberty” under Article 21. Hence, our understanding of
         the “right to privacy” should account for its intersection with Article
         20(3)”                                                                    G
       133. It is argued that the Aadhaar Act, therefore, violates the
right to protection from self-incrimination, and the right to privacy and
personal dignity/bodily integrity under Article 20(3) and Article 21.
60
     (2010) 7 SCC 263
                                                                                   H
296               SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A            134. It was argued that the Constitution of India repudiates mass
      surveillance as enabled by Aadhaar and the project ought to 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
B     to establish that surveillance causes interference with right to privacy,
      life and liberty. From Kharak Singh v. State of U.P.61, 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:
C              “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
D                 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 wide
E                 meaning in America. It takes in all the freedoms. In Bolling v.
                  Sharpe (2), the Supreme Court of America observed that the
                  said expression was not confined to mere freedom from bodily
                  restraint and that liberty under law extended to the full range
                  of conduct which the individual was free to pursue. But this
F                 absolute right to liberty was regulated to protect other social
                  interests by the State exercising its powers such as police
                  power, the power of eminent domain, the power of taxation
                  etc. The proper exercise of the power which is called the due
                  process of law is controlled by the Supreme Court of America.
                  In India the word “liberty” has been qualified by the word
G                 “Personal”, indicating thereby that it is confined only to the
                  liberty of the person. The other aspects of the liberty have
                  been provided for in other Articles of the Constitution
                                  xx                xx                xx
      61
           (1964) 1 SCR 332
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            297
                        [A. K. SIKRI, J.]

             It is true our Constitution does not expressly declare a right to     A
             privacy as a fundamental right, but the said right is an essential
             ingredient of personal liberty. Every democratic country
             sanctifies domestic life; it is expected to give him rest, physical
             happiness, peace of mind and security. In the last resort, a
             person’s house, where he lives with his family, is his “castle”;
                                                                                   B
             it is his rampart against encroachment on his personal liberty.
             The pregnant words of that famous Judge, Frankfurter J., in
             Wolf v. Colorado [[1949] 238 US 25] pointing out the importance
             of the security of one’s privacy against arbitrary intrusion by
             the police, could have no less application to an Indian home as
             to an American one. If physical restraints on a person’s              C
             movements affect his personal liberty, physical encroachments
             on his private life would affect it in a larger degree. Indeed,
             nothing is more deleterious to a man’s physical happiness and
             health than a calculated interference with his privacy. We would,
             therefore, define the right of personal liberty in Article 21 as a
                                                                                   D
             right of an individual to be free from restrictions or
             encroachments on his person, whether those restrictions or
             encroachments are directly imposed or indirectly brought about
             by calculated measures.
                             xx                xx                xx
                                                                                   E
             The freedom of movement in clause (d) of Article 19 therefore
             must be a movement in a free country i.e. in a country where
             he can do whatever he likes, speak to whomsoever he wants,
             meet people of his own choice without any apprehension,
             subject of course to the law of social control. The petitioner
             under the shadow of surveillance is certainly deprived of this        F
             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             G
and Anr. v. Canara Bank and Ors.62, 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
62
     (2005) 1 SCC 496                                                              H
298                SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A     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:
B
             “The A.P. amendment permits inspection being carried out by the
             Collector by having access to the documents which are in private
             custody i.e. custody other than that of a public officer. It is clear
             that this provision empowers invasion of the home of the person
             in whose possession the documents ‘tending’ to or leading to the
C            various facts stated in sec. 73 are in existence and sec. 73 being
             one without any safeguards as to probable or reasonable cause or
             reasonable basis or materials violates the right to privacy both of
             the house and of the person. We have already referred to R.
             Rajagopal’s case wherein the learned judges have held that the
D            right to personal liberty also means the life free from
             encroachments unsustainable in law and such right flowing from
             Article 21 of the Constitution.”
             137. Reference was made to the U.S Supreme Court case of
      U.S. v. Jones63 where the court held that installing a Global Positioning
      System (GPS) tracking device on a vehicle and using the device to monitor
E     the vehicle’s movements constitutes an unlawful search under the Fourth
      Amendment. Sotomayor, J. in her concurring judgment observed that
      Fourth Amendment search and seizure is not only concerned with
      physical trespassory intrusions on property but also non-physical violation
      of privacy that society recognizes as reasonable. She notes that GPS
F     data can reveal an entire profile of a person simply by knowing the
      places she visits and that the Government can mine this data in the
      future:
             “With increasing regularity, the Government will be capable of
             duplicating the monitoring undertaken in this case by enlisting
             factory or owner-installed vehicle tracking devises or GPS enabled
G
             smart-phones … In cases of electronic or other novel modes of
             surveillance that do not depend upon a physical invasion on
             property, the trespassory test may provide little guidance.
                           xx            xx               xx
      63
H          132 S.Ct. 945 (2012)
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              299
                        [A. K. SIKRI, J.]

         GPS monitoring generates a precise, comprehensive record of a               A
         person’s public movements that reflects a wealth of detail about
         her familial, political, professional, religious, and sexual associations
         … disclosed GPS data will be trips to the psychiatrist, plastic
         surgeon, abortion clinic, AIDS treatment centre, strip club, criminal
         defence attorney …
                                                                                     B
         Government can store such records and efficiently mine them for
         information years into the future… awareness that the government
         may 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.
                                                                                     C
                    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         D
         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”).”
                                                                                     E
                                                                          64
       138. The judgment of the ECtHR in Zakharov v. Russia 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
                                                                                     F
without prior judicial authorisation, under the prevailing national law. The
Court observed that:
         “Mr Zakharov was entitled to claim to be a victim of a violation of
         the European Convention, even though he was unable to allege
         that he had been the subject of a concrete measure of surveillance.
                                                                                     G
         Given the secret nature of the surveillance measures provided for
         by the legislation, their broad scope (affecting all users of mobile
         telephone communications) and the lack of effective means to

64
     (2015) Application No. 47143/2006
                                                                                     H
300             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A            challenge them at national level… Russian law did not meet the
             “quality of law” requirement and was incapable of keeping the
             interception of communications to what was “necessary in a
             democratic society”. There had accordingly been a violation of
             Article 8 of the Convention… existence of arbitrary and abusive
             surveillance practices, which appear to be due to inadequate
B
             safeguards provided by law”.
             139. The Court held that any interference with the right to privacy
      under Article 8 can only be justified under Article 8(2) if it is in accordance
      with law, pursues one or more legitimate aims and is necessary in a
      democratic society to achieve such aim. “In accordance with the law”
C
      requires the impugned measure both to have some basis in domestic law
      and to be compatible with the rule of law, which is expressly mentioned
      in the Preamble to the Convention and inherent in the object and purpose
      of Article 8. The law must, thus, meet quality requirements: it must be
      accessible to the person concerned and foreseeable as to its effects.
D     With respect to foreseeability of surveillance, the court held:
             “Foreseeability in the special context of secret measures of
             surveillance, such as the interception of communications, cannot
             mean that an individual should be able to foresee when the
             authorities are likely to intercept his communications so that he
E            can adapt his conduct accordingly. However, especially where a
             power vested in the executive is exercised in secret, the risks of
             arbitrariness are evident. It is therefore essential to have clear,
             detailed rules on interception of telephone conversations, especially
             as the technology available for use is continually becoming more
             sophisticated. The domestic law must be sufficiently clear to give
F            citizens an adequate indication as to the circumstances in which
             and the conditions on which public authorities are empowered to
             resort to any such measures.
                        xx                xx                xx

G            Since the implementation in practice of measures of secret
             surveillance 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
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             301
                        [A. K. SIKRI, J.]

          discretion conferred on the competent authorities and the manner          A
          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                  B
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.                                                             C

     141. For establishing if the measures were “necessary in a
democratic society” in pursuit of a legitimate aim, the Court observed:
          “When balancing the interest of the respondent State in protecting
          its national security through secret surveillance measures against        D
          the seriousness of the interference with an applicant’s right to
          respect for his or her private life, the national authorities enjoy a
          certain margin of appreciation in choosing the means for achieving
          the legitimate aim of protecting national security. However, this
          margin is subject to European supervision embracing both
          legislation and decisions applying it. In view of the risk that a         E
          system of secret surveillance set up to protect national security
          may undermine or even destroy democracy under the cloak of
          defending it, the Court must be satisfied that there are adequate
          and effective guarantees against abuse. The assessment depends
          on all the circumstances of the case, such as the nature, scope           F
          and duration of the possible measures, the grounds required for
          ordering them, the authorities competent to authorise, carry out
          and supervise them, and the kind of remedy provided by the national
          law. The Court has to determine whether the procedures for
          supervising the ordering and implementation of the restrictive
          measures are such as to keep the “interference” to what is                G
          “necessary in a democratic society”.”
     142. Two other cases of violation of Article of the European
Convention of Human Rights were cited, namely Digital Rights Ireland
65
     [2014] All ER (D) 66 (Apr)
                                                                                    H
302              SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     Ltd. v. Minister for Communication, Marine and Natural Resources65
      and S and Marper v. United Kingdom66. In Digital Ireland, the
      European Parliament and the Council of the European Union adopted
      Directive 2006/24/EC (Directive), which regulated Internet Service
      Providers’ storage of telecommunications data. It could be used to retain
      data generated or processed in connection with the provision of publicly
B
      available electronic communications services or of public communications
      network for the purpose of fighting serious crime in the European Union
      (EU). The data included data necessary to trace and identify the source
      of communication and its destination, to identify the date, time duration,
      type of communication, IP address, telephone number and other fields.
C     The European Court of Justice (ECJ) evaluated the compatibility of the
      Directive with Articles 7 and 8 of the Charter of Fundamental Rights of
      the European Union and declared the Directive 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
D
      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.
E            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
F     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 as they relate to identified and identifiable individuals.
      The Court held that invasion of privacy was not “necessary in a democratic
G     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.
              144. The respondents, on the other hand, rebutted the arguments
      66
           (2008) ECHR 1581
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            303
                            [A. K. SIKRI, J.]

of the petitioners that the architecture of the Aadhaar Act enables State       A
surveillance. It was submitted that bare minimal information was obtained
from the individual who enrolled for Aadhaar. Insofar as demographic
information is concerned, it included name, date of birth, address, gender,
mobile number and email address. The latter two are optional and meant
for transmitting relevant information to the AMH and for One Time
                                                                                B
Password (OTP) based authentication. This information was in respect
of an individual and is always in public domain. Section 2(k) of the
Aadhaar Act specifically provides that regulations cannot include race,
religion, caste, tribe, ethnicity, language, records of entitlement, income
or medical history. Therefore, sensitive information specifically stands
excluded. This specific exclusion, in the context, ensures that the scope       C
of including additional demographic information is very narrow and
limited. It was also argued that even the biometric information was
limited to the fingerprints and iris scan, which is considered to be the
core biometric information. Such information is, again, frequently utilised
globally to ascertain the identity of a person. The argument was, thus,
                                                                                D
that the information gathered was non-invasive and non-intrusive identity
information.
       145. It was also argued that the very scheme of the Aadhaar and
the manner in which it operates excludes every possibility of data profiling
and, therefore, the question of State surveillance would not arise. The
powerpoint presentation which was given by Dr. Pandey, as has been              E
stated above, was referred to, on the basis of which it was argued that
the Aadhaar design takes full care of security of persons.
       146. It was also argued by the respondents that identity information
data resides in the CIDR which is not in the control of the Government
or the police force. The Authority is a body constituted as a body corporate    F
having perpetual succession and a common seal. It is regulated by
substantive 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                   G
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
                                                                                H
304             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


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
B     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 architecture
      of the Act does not allow surveillance. It was submitted that the petitioners
      have not made out a case of surveillance by the Authority but points out
      a mere possibility of surveillance.
C
             148. We may reiterate that the argument of surveillance also has
      the reflections of privacy and in fact the argument is structured on the
      basis that the vital information which would be available with the
      Government can be utilised to create the profiling of individuals and
      retention of such information in the hands of the respondents is a risky
D     affair which may enable the State to do the surveillance of any individual
      it wants.
             149. Insofar as the aspect of privacy of individual is concerned,
      that would be dealt with in detail while addressing that issue. To segregate
      issue of surveillance from privacy, we are focusing the discussion to the
E     aspect whether there is sufficient data available with the respondents
      which may facilitate the profiling and misuse thereof or whether there
      are sufficient safeguards to ward off the same. In the process, we
      would be discussing the issues pertaining to data protection as well. At
      the same time, there would be some overlapping of discussion inasmuch
F     as it will have to be seen as to the collection, storage and use of biometric
      data satisfies the proportionality principle.
             150. It is clear that the argument of the petitioners is that on the
      basis of the data available with the Authority, there can be a profiling of
      an individual which may make the surveillance state. And such a mass
G     surveillance is not permitted by the Constitution of India. The entire
      foofaraw about the Aadhaar architecture is the so-called enormous
      information that would be available to the Government on using Aadhaar
      card by residents. Two issues arise from the respective arguments of
      the parties:
             (a) whether the architecture of the Aadhaar project enables the
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          305
                    [A. K. SIKRI, J.]

      State to create a regime of surveillance?; and                         A
      (b) whether there are adequate provisions for data protection?
       151. Insofar as issue (a) above is concerned, after going through
the various aspects of the Aadhaar project, the provisions of the Aadhaar
Act and the manner in which it operates, it is difficult to accept the
argument of the petitioners. The respondents have explained that the         B
enrolment and authentication processes are strongly regulated so that
data is secure. The enrolment agency, which 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          C
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            D
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            E
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          F
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       G
the Information Technology Act, 2000 (hereinafter referred to as the
‘IT Act’) which defines ‘secure systems’ and Section 2(w) of the Act,
which defines ‘intermediaries’ apply to the process. Authentication only
becomes available through the Authentication Service Agency (ASA).
They are regulated by the Aadhaar (Authentication) Regulations, 2016.
                                                                             H
306             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     Their role and responsibilities are provided by Regulation 19 of the
      Authentication Regulations. They are to use certified devices. The
      equipment or software has to be duly registered with or approved or
      certified by the Authority/agency. The systems and operations are audited
      by information system auditor. The requesting entities pass the encrypted
      data to the CIDR through the ASA and the response (Yes/No
B
      authentication or e-KYC information) also takes the same route back.
      The server of the ASA has to perform basic compliance and completeness
      checks on the authentication data packet before forwarding it to the
      CIDR. The Act prohibits sharing and disclosure of core biometric data
      under Section 8 and 29. Other identity information is shared with requesting
C     entity (AUAs and KUAs) only for the limited purpose of authentication.
      The data is transferred from the requesting entity to the ASA to the
      CIDR in an encrypted manner through a leased line circuitry using secure
      Protocols (Regulation 9 of the Authentication Regulations). The storage
      of data templates is in safely located servers with no public internet
      inlet/outlet, and offline storage of original encrypted data (PID blocks).
D
      There are safety and security provisions such as audit by Information
      Systems Auditor. Requesting entities are appointed through agreement.
      They can enter into agreement with sub-AUA or sub-KUA with
      permission of the UIDAI. Whatever identity information is obtained by
      the requesting entity is based on a specific consent of the Aadhaar number
E     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
F
      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
G     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 System” under Section 70 of the IT Act by
      the Central Government on December 11, 2015. Anyone trying to
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              307
                    [A. K. SIKRI, J.]

unlawfully gain access into this system is liable to be punished with 10         A
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. There are
                                                                                 B
further guards under the Aadhaar (Data Security) Regulations, 2016.
      152. That apart, we have recorded in detail the powerpoint
presentation that was given by Dr. Ajay Bhushan Pandey, CEO of the
Authority, which brings out the following salient features:
      (a) During the enrolment process, minimal biometric data in the            C
      form of iris and fingerprints is collected. The Authority does not
      collect purpose, location or details of transaction. Thus, it is purpose
      blind. The information collected, as aforesaid, remains in silos.
      Merging of silos is prohibited. The requesting agency is provided
      answer only in ‘Yes’ or ‘No’ about the authentication of the person
      concerned. The authentication process is not exposed to the                D
      Internet world. Security measures, as per the provisions of Section
      29(3) read with Section 38(g) as well as Regulation 17(1)(d) of
      the Authentication Regulations are strictly followed and adhered
      to.
      (b) There are sufficient authentication security measures taken            E
      as well, as demonstrated in Slides 14, 28 and 29 of the presentation.
      (c) The Authority has sufficient defence mechanism, as explained
      in Slide 30. It has even taken appropriate protection measures as
      demonstrated in Slide 31.
                                                                                 F
      (d) There is an oversight by Technology and Architecture Review
      Board (TARB) and Security Review Committee.
      (e) During authentication no information about the nature of
      transaction etc. is obtained.
      (f) The Authority has mandated use of Registered Devices (RD)              G
      for all authentication requests. With these, 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
                                                                                 H
308             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           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 the Authentication Regulations.
B
            (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
C           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
D           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 the powerpoint presentation from the provisions of
E     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 biometric and demographic
      information stored in CIDR. Insofar as authentication is concerned, the
      respondents rightly pointed out that there are sufficient safeguard
      mechanisms. To recapitulate, it was specifically submitted that there
F     were security technologies in place (slide 28 of Dr. Pandey’s
      presentation), 24/7 security monitoring, data leak prevention, vulnerability
      management programme and independent audits (slide 29) as well as
      the Authority’s defence mechanism (slide 30). It was further pointed
      out that the Authority has taken appropriate pro-active protection
G     measures, which included disaster recovery plan, data backup and
      availability and media response plan (slide 31). The respondents also
      pointed out that all security principles are followed inasmuch as: (a)
      there is PKI-2048 encryption from the time of capture, meaning thereby,
      as soon as data is given at the time of enrolment, there is an end to end
      encryption thereof and it is transmitted to the Authority in encrypted
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                         309
                     [A. K. SIKRI, J.]

form. The said encryption is almost foolproof and it is virtually impossible                 A
to decipher the same; (b) adoption of best-in-class security standards
and practices; and (c) strong audit and traceability as well as fraud
detection. Above all, there is an oversight of Technology and Architecture
Review Board (TARB) and Security Review Committee. This Board
and Committee consist of very high profiled officers. Therefore, the Act
                                                                                             B
has endeavoured to provide safeguards67.
       154. Issue (b) relates to data protection. According to the
petitioners there is no data protection and there is a likelihood of misuse
of data/personal information of the individuals.
       155. The question to be determined is whether the safeguards
provided for the protection of personal biometric data in the Aadhaar                        C
Act and Rules are sufficient. The crucial tasks that the Court needs to
undertake are – (i) to discuss the significance of data in the world of
technology and its impact; (ii) to determine the magnitude of protection
that should be accorded to collection, storage and use of sensitive
biometric data, so that they can qualify as proportionate; and (iii) to                      D
determine whether the Aadhaar Act and Rules provide such data
protection, thereby obviating any possibility of surveillance.
 67
    We may also take on record responsible statements of the learned Attorney General
and Mr. Dwivedi who appeared for UIDAI that no State would be interested in any
mass surveillance of 1.2 Billion people of the country or even the overwhelming majority
of officers and employees or professionals. The very idea of mass surveillance by State      E
which pursues what an ANH does all the time and based on Aadhaar is an absurdity and
an impossibility. According to them, the petitioners submission is based on too many
imaginary possibilities, viz.:
(i) Aadhaar makes it possible for the State to obtain identity information of all ANH. It
is possible that UIDAI would share identity information/authentication 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     F
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    G
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 pleaded on the basis of which the
asserted threat could be fairly traced to. However, we have not deliberated on this
argument.                                                                                    H
310             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           (i) Significance of Data:
             156. Alvin Toffler in his illuminating article titled ‘What will our
      future be like?’ has presented mind boggling ideas. Toffler traces the
      transition – from agriculture society to industry society to knowledge
      based society. If we go back to the beginnings of time, agriculture was
B     the prime source and the entire mankind was based on agriculture. 350
      years later with the invention of steam engines came the industrialized
      age and now what we are living through is the third gigantic wave, which
      is way more powerful than industrialized age. An age that is based on
      knowledge. Toffler emphasises that in today’s society the only thing that
      leads to creation of wealth is knowledge. Unlike the past wherein
C     economics was described as the science of the allocation of scarce
      resources, today we are primarily dependent on knowledge and that is
      not a scarce resource. Times are changing, we can no longer trust the
      straight line projection. His view is that we are going from a society
      which is more and more uniform to a highly de-massified society.
D     Knowledge is power. We are in the era of information. Probably what
      Toffler is hinting is that access to this vast reservoir of information is
      available in digital world. Information is available online, at the touch of
      a button. With this, however, we usher into the regime of data.
            157. In a recent speech by Mr. Benjamin Netanyahu, Prime
E     Minister of Israel, while talking about innovation 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
F           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
G     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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              311
                     [A. K. SIKRI, J.]

      entirely new industries, so here is an old industry that Israel was         A
      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 database and there
      is sensor at the field and in the field there is drip irrigation and drip
      fertilization and now we can target with this technology the water
                                                                                  B
      that we give, the fertilizer that we give down to the individual
      plant that needs it. That’s precision agriculture, that’s Israel.
      Unbelievable.”
       159. This brings us to the world of data – big data. It has its own
advantages of tremendous nature. It is making life of people easier.
People can connect with each other even when they are located at                  C
places far away from each other. Not only they can converse with each
other but can even see each other while talking. There is a wealth of
information available on different networks to which they can easily
access and satisfy their quest for knowledge within seconds by getting
an answer. People can move from one place to the other with the aid of            D
Global Positioning System (GPS). They can hear music and watch movies
on their handy gadgets, including smart cellphones. We are in the age of
digital economy which has enabled multiple avenues for a common man.
Internet access is becoming cheaper by the day, which can be accessed
not only through the medium of desktop computers or laptops and even
other handy gadgets like smart phones. Electronic transactions like online        E
shopping, bill payments, movie/train/air ticket bookings, funds transfer,
e-wallet payments, online banking and online insurance etc. are happening
with extreme ease at the touch of a finger. Such tasks can be undertaken
sitting in drawing rooms. Even while travelling from one place to the
other in their car, they can indulge in all the aforesaid activities. In that     F
sense, technology has made their life so easy.
        160. However, there is another side to do as well, like any coin
which has two sides. The use of such technologies is at the cost of
giving away personal information, which is in the realm of privacy. In
order to connect with such technologies and avail their benefits, the             G
users are parting with their biometric information like fingerprints and
iris as well as demographic information like their names, parentage, family
members, their age, even personal information like their sex, blood group
or even the ailments they are suffering from. Not only this, use of
aforesaid facilities on net or any portal like Apple, Google, Facebook
                                                                                  H
312             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     etc. involves tracking their movements, including the nature 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
B
      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
C     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
D     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 adopted in providing a legal ecosystem to regulate
      cross-border data transfer. Asian Business Law Institute (ABLI), in
      collaboration with Singapore Academy of Law (SAL) has, after
      undertaking in-depth study, compiled 14 country reports in their respective
E     jurisdictions on the regulation of cross-border data transfer and data
      localisation in Asia.
              162. In the aforesaid scenario, interesting issue is posed by the
      respondents, viz., when so much personal information about people is
      already available in public domain, how can there be an expectancy of
F     data privacy. That aspect is dealt with while discussing the issue of
      privacy. Here, we are concerned with data protection under Aadhaar
      that is available with the State. As pointed out above, even in respect of
      private players, the data protection has become a matter of serious
      concern. When it comes to the State or the instrumentality of the State,
G     the matter has to be taken with all seriousness, on the touchstone of
      constitutionalism and the concept of limited Government.
            (ii) Law on Data Protection:
             163. In order to determine this aspect, i.e. the nature and magnitude
      of data protection that is required to enable legal collection and use of
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                    313
                        [A. K. SIKRI, J.]

biometric data, reliance can be placed on – (a) various existing legislations              A
– both in India and across the world; and (b) case law including the
judgment in K.S. Puttaswamy.
        (a) Legislation in India:
        (i) Information Technology Act, 2000
                                                                                           B
      The only existing legislation covering data protection related to
biometric information are Section 43A and Section 72A of the IT Act
and the Information Technology (Reasonable Security Practices and
Procedures and Sensitive Personal Data or Information) Rules, 2011
(hereinafter “Sensitive Personal Data Rules”). Although the IT Act and
Rules do not determine the constitutionality of use of biometric data and                  C
information by the Aadhaar Act and Rules, they are instructive in
determining the safeguards that must be taken to collect biometric
information68.
      164. Following are the provisions which cover biometric
information under the IT Act:                                                              D
       Section 43A of the IT Act attaches liability 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                   E
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,                 F
        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.
                                                                                           G
        Explanation. -For the purposes of this section,-
68
  A challenge to the Aadhaar project for violation of IT Act and Rules has been filed in
the Delhi High Court in the matter of Shamnad Basheer v UIDAI and Ors. Therefore,
we are not dealing with this aspect, nor does it arise for consideration in these
proceedings.
                                                                                           H
314            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A           (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 security
            practices and procedures designed to protect such information
B           from unauthorised access, damage, use, modification, disclosure
            or impairment, as may be specified in an agreement between the
            parties or as may be specified in any law for the time being in
            force and in the absence of such agreement or any law, such
            reasonable security practices and procedures, as may be prescribed
            by the Central Government in consultation with such professional
C           bodies or associations as it may deem fit;
            (iii) “sensitive personal data or information” means such personal
            information as may be prescribed by the Central Government in
            consultation with such professional bodies or associations as it
            may deem fit.]”
D
             165. Similarly, Section 72A of the IT Act makes intentional
      disclosure of ‘personal information’ obtained under a contract, without
      consent of the parties concerned and in breach of a lawful contract,
      punishable with imprisonment and fine. Rule 2(i) of the Sensitive Personal
      Data Rules define “personal information” to mean any information that
E     relates to a natural person, which, either directly or indirectly, in
      combination with other information available or likely to be available
      with a body corporate, is capable of identifying such person. Thus,
      biometrics will form a part of “personal information”. The Section reads
      as under-
F           “72A. Punishment for disclosure of information in breach
            of lawful contract - Save as otherwise provided in this Act or
            any other law for the time being in force, any person including an
            intermediary who, while providing services under the terms of
            lawful contract, has secured access to any material containing
G           personal information about another person, with the intent to cause
            or knowing that he is likely to cause wrongful loss or wrongful
            gain discloses, without the consent of the person concerned, or in
            breach of a lawful contract, such material to any other person,
            shall be punished with imprisonment for a term which may extend
            to three years, or with fine which may extend to five lakh rupees,
H           or with both.”
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            315
                    [A. K. SIKRI, J.]

      166. The Sensitive Personal Data Rules provide for additional            A
requirements on commercial and business entities (body corporates as
defined under Section 43A of the IT Act) relating to the collection and
disclosure of sensitive personal data (including biometric information).
The crucial requirements, which are indicative of the principles for data
protection that India adheres to, inter alia include:
                                                                               B
      (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.                                                                C

      (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.
                                                                               D
      (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                                    E

      (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 recipients of
      the information; and (d) name and address of the agency collecting
      and retaining the information.                                           F
      (v) Body corporate or any person on its behalf holding sensitive
      personal data or information shall not retain that information for
      longer than is required for the purposes for which the information
      may lawfully be used or is otherwise required under any other
      law for the time being in force.                                         G
      (vi) Information collected shall be used for the purpose for which
      it has been collected.
      (vii) Body corporate or any person on its behalf shall, prior to the
      collection of information, including sensitive personal data or
                                                                               H
316                 SUPREME COURT REPORTS                                 [2018] 8 S.C.R.


A               information, provide an option to the provider of the information
                to not to provide the data or information sought to be collected.
                (viii) Body corporate shall address any discrepancies and
                grievances of their provider of the information with respect to
                processing of information in a time bound manner.
B               (ix) Disclosure of sensitive personal data or information by body
                corporate to any third party shall require prior permission from
                the provider of such information, who has provided such
                information under lawful contract or otherwise, unless such
                disclosure has been agreed to in the contract between the body
C               corporate and provider of information, or where the disclosure is
                necessary for compliance of a legal obligation.
                (x) A body corporate or a person on its behalf shall comply with
                reasonable security practices and procedure i.e. implement such
                security practices and standards and have a comprehensive
D               documented information security programme and information
                security policies that contain managerial, technical, operational
                and physical security control measures that are commensurate
                with the information assets being protected with the nature of
                business. In the event of an information security breach, the body
                corporate or a person on its behalf shall be required to demonstrate,
E               as and when called upon to do so by the agency mandated under
                the law, that they have implemented security control measures as
                per their documented information security programme and
                information security policies.
             The above substantive and procedural safeguards are required
F     for legal collection, storage and use of biometric information under the
      IT Act. They indicate the rigour with which such processes need to be
      carried out.
                Position in other countries:
                (a) EUGDPR (European Union General Data Protection
G
                   Regulation)69
      69
           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)
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          317
                     [A. K. SIKRI, J.]

        EUGDPR which was enacted by the EU in 2016 came into force            A
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
                                                                              B
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);                                C

      (ii) the personal data must be collected for specified, explicit, and
      legitimate purposes (principle of purpose limitation);
      (iii) processing must also be adequate, relevant, and limited to
      what is necessary (principle of data minimization) as well as           D
      accurate and, where necessary, kept up to date (principle of
      accuracy);
      (iv) data is to be kept in a form that permits identification of data
      subjects for no longer than is necessary for the purposes for which
      the personal data are processed (principle of storage limitation);      E
      (v) data processing must be secure (principle of integrity and
      confidentiality); and
      (vi) data controller is to be held responsible (principle of
      accountability).
                                                                              F
      167. The EUGDPR under Article 9 prohibits the collection of
biometric data unless except in few circumstances which include (but
are not limited to) -
      (a) there is an explicit consent by the party whose data is being
      collected. The consent should be freely given, which is clearly
      distinguishable in an intelligible and easily accessible form, using    G
      clear and plain language. This consent can be withdrawn at any
      time without affecting the actions prior to the withdrawal;
      (b) processing is necessary for the purposes of carrying out the
      obligations and exercising specific rights of the controller or of
                                                                              H
318             SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A            the data subject in the field of employment and social security and
             social protection law;
             (c) processing relates to personal data which is manifestly made
             public by the data subject; and
             (d) processing is necessary for reasons of substantial public
B            interest, and it shall be proportionate to the aim pursued, respect
             the essence of the right to data protection and provide for suitable
             and specific measures to safeguard the fundamental rights and
             the interests of the data subject.
             168. The Regulation also institutes rights of the data subject (the
C     person whose data is collected), subject to exceptions, which include the
      data subject’s right of access to information about the purpose of collection
      of data, details of data controller and subsequent use and transfer of
      data, the data subject’s right to rectification of data, right to erasure or
      right to be forgotten, the data subject’s right to restriction of processing,
D     the right to be informed, the right to data portability and the data subject’s
      right to object to illegitimate use of data.
             (b) Biometric Privacy Act in the United States of America
             169. Some States in the United States of America have laws
      regulating collection and use of biometric information. Illinois has passed
E     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
F     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.
G
             (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.
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                     319
                        [A. K. SIKRI, J.]

observed that with the increasing ubiquity of electronic devices,                           A
information can be accessed, stored and disseminated without notice to
the individual. Metadata and data mining make the individual’s personal
information subject to private companies and the state. In this background,
His Lordship discusses the necessity of a data protection regime for
safeguarding privacy and protecting the autonomy of the individual. The
                                                                                            B
following observations in the conclusion of the judgment are worth quoting:
          “328. Informational privacy is a facet of the right to privacy. The
          dangers to privacy in an age of information can originate not only
          from the state but from non-state actors as well. We commend to
          the Union Government the need to examine and put into place a
          robust regime for data protection. The creation of such a regime                  C
          requires a careful and sensitive balance between individual interests
          and legitimate concerns of the state. The legitimate aims of the
          state would include for instance protecting national security,
          preventing and investigating crime, encouraging innovation and
          the spread of knowledge, and preventing the dissipation of social                 D
          welfare benefits. These are matters of policy to be considered by
          the Union government while designing a carefully structured regime
          for the protection of the data. Since the Union government has
          informed the Court that it has constituted a Committee chaired by
          Hon’ble Shri Justice B N Srikrishna, former Judge of this Court,
          for that purpose, the matter shall be dealt with appropriately by                 E
          the Union government having due regard to what has been set
          out in this judgment.”
       171. S.K. Kaul, J. cited the European Union General Data
Protection Regulations70 to highlight the importance of data protection
and the circumstances in which restrictions on the right to privacy may                     F
be justifiable subject to the principle of proportionality. These include
balance against other fundamental rights, legitimate national security
interest, public interest including scientific or historical research purposes
or statistical purposes, criminal offences, tax purposes, etc.
      172. There are numerous case laws – both American and European                        G
– presented by the petitioners and the respondents with respect to the
70
     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)
                                                                                            H
320                SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     collection, storage and use of biometric data which have been taken
      note of above. They are illustrative of the method and safeguards required
      to satisfy the proportionality principle while dealing with biometric data.
      The first set of cases cited by the petitioners are cases from European
      Human Rights Courts.
B             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
C     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
D     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 Marper71. In this case, 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
E     or 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 without their consent.
              175. In a unanimous verdict, the seventeen-judge bench held that
      there had been a violation of Article 8 of the ECHR. Fingerprints, DNA
F     profiles and cellular samples, constituted personal data and their retention
      was capable of affecting private life of an individual. The retention of
      such data without consent, thus, constitutes violation of Article 8 as they
      relate to identified and identifiable individuals. It held that:
               “84. …fingerprints objectively contain unique information about
G              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.”
      71
           S and Marper v. United Kingdom [2008] ECHR 1581
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              321
                     [A. K. SIKRI, J.]

      176. It articulated the proportionality principle in the following          A
words:
      “101. An interference will be considered “necessary in a
      democratic society” for a legitimate aim if it answers a “pressing
      social need” and, in particular, if it is proportionate to the legitimate
      aim pursued and if the reasons adduced by the national authorities          B
      to justify it are “relevant and sufficient
                 xx                xx                 xx
      The protection of personal data is of fundamental importance to a
      person’s enjoyment of his or her right to respect for private and
      family life, as guaranteed by Article 8 of the Convention. The              C
      domestic law must afford appropriate safeguards to prevent any
      such use of personal data as may be inconsistent with the
      guarantees of this Article. The need for such safeguards is all the
      greater where the protection of personal data undergoing automatic
      processing is concerned, not least when such data are used for              D
      police purposes. The domestic law should notably ensure that such
      data are relevant and not excessive in relation to the purposes for
      which they are stored; and preserved in a form which permits
      identification of the data subjects for no longer than is required
      for the purpose for which those data are stored … The domestic
      law must also afford adequate guarantees that retained personal             E
      data was efficiently protected from misuse and abuse.”
       177. The issue 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.                        F
       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:                                             G
      “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
                                                                                  H
322               SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A              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 obviates the need for the Court
B
               to consider the applicants’ criticism regarding the adequacy of
               certain particular safeguards, such as too broad an access to the
               personal data concerned and insufficient protection against the
               misuse or abuse of such data.”
             179. The two crucial aspects of the case that need to be kept in
C     mind are – First, in that case, the fingerprints were collected for criminal
      purposes and without the consent of the individual to whom the fingerprints
      belonged. Second, the fingerprints were to be stored indefinitely without
      the consent of the individual and that the individual did not have an option
      to seek deletion. These aspects were vital for the Court to decide that
D     the retention violated the citizen’s right to privacy.
             180. Similarly, in the Digital Ireland case 72, the European
      Parliament and the Council of the European Union adopted Directive
      2006/24/EC (Directive), which regulated Internet Service Providers’
      storage of telecommunications data. It could be used to retain data which
E     was generated or processed in connection with the provision of publicly
      available electronic communications services or of public communications
      network, for the purpose of fighting serious crime in the European Union.
      The data included data necessary to trace and identify the source of
      communication and its destination, to identify the date, time duration,
      type of communication, IP address, telephone number and other fields.
F     The Court of Justice of European Court (CJEU) evaluated the
      compatibility of the Directive with Articles 7 and 8 of the Charter and
      declared the Directive to be invalid.
             181. According to the CJEU, the Directive interfered with the
      right to respect for private life under Article 7 and with the right to the
G     protection of personal data under Article 8 of the Charter of Fundamental
      Rights of the European Union. 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
      72
           Digital Rights Ireland Ltd v Minister for Communication, Marine and Natural
           Resources [2014] All ER (D) 66 (Apr)
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                               323
                        [A. K. SIKRI, J.]

of residence, daily and other movements, activities carried out, social               A
relationships and so on. The invasion of right was not proportionate to
the legitimate aim pursued for the following reasons:
         (i) Absence of limitation of data retention pertaining to a particular
         time period and/or a particular geographical zone and/or to a circle
         of particular persons likely to be involved.                                 B
         (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              C
         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.
                                                                                      D
         (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          E
         within the European Union.
       182. In Tele2 Sverige AB vs. Post-och telestyrelsen73, 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 (name, address, telephone number and IP
                                                                                      F
address) regarding users/subscribers for the purpose of fighting crime
was contrary to Article 7, 8 and 11 of the EU Charter. The CJEU struck
down the provision allowing collection of such meta data on grounds of
lack of purpose limitation, data differentiation, data protection, prior
review by a court or administrative authority and consent, amongst other
grounds. It held:                                                                     G
         “103. While the effectiveness of the fight against serious crime,
         in particular organised crime and terrorism (…) cannot in itself
73
     Tele2 Sverige AB v. Post-och telestyrelsen and Secretary of State for the Home
     Department v. Tom Watson, Peter Brice, Geoffrey Lewis, Joined Cases C-203/15
     and C-698/15, 2016                                                               H
324            SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A           justify that national legislation providing for the general and
            indiscriminate retention of all traffic and location data should be
            considered to be necessary for the purposes of that fight.
                       xx                xx                 xx
            105. Second, national legislation (…) provides for no differentiation,
B           limitation or exception according to the objective pursued. It is
            comprehensive in that it affects all persons using electronic
            communication services, even though those persons are not, even
            indirectly, in a situation that is liable to give rise to criminal
            proceedings. It therefore applies even to persons for whom there
C           is no evidence capable of suggesting that their conduct might have
            a link, even an indirect or remote one, with serious criminal
            offences. Further, it does not provide for any exception, and
            consequently it applies even to persons whose communications
            are subject, according to rules of national law, to the obligation of
            professional secrecy.
D
                       xx                xx                 xx
            if it is to be ensured that data retention is limited to what is strictly
            necessary, it must be observed that, while those conditions may
            vary according to the nature of the measures taken for the purposes
E           of prevention, investigation, detection and prosecution of serious
            crime, the retention of data must continue nonetheless to meet
            objective criteria, that establish a connection between the data to
            be retained and the objective pursued. In particular, such conditions
            must be shown to be such as actually to circumscribe, in practice,
            the extent of that measure and, thus, the public affected.”
F
            183. With respect to measures for data security and data protection
      the court held :
            “122. Those provisions require those providers to take appropriate
            technical and organisational measures to ensure the effective
            protection of retained data against risks of misuse and against
G
            any unlawful 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
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                         325
                        [A. K. SIKRI, J.]

        means of appropriate technical and organisational measures. In          A
        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 BVerfG74, the German Constitutional Court rendered on
March 02, 2010 a decision by which provisions of the data retention             B
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
Commissioner75, the CJEU struck down the transatlantic US-EU Safe               C
Harbor agreement that enabled companies to transfer data from Europe
to the United States on the ground that there was not an adequate level
of safeguard to protect the data. It held that the U.S. authorities could
access the data beyond what was strictly necessary and proportionate
to the protection of national security. The subject had no administrative
or judicial means of accessing, rectifying or erasing their data.               D

       186. In Szabo and Vissy v. Hungary 76 , the ECtHR held
unanimously that there had been a violation of Article 8 (right to respect
for private and family life, the home and correspondence) of the European
Convention on Human Rights. The case concerned Hungarian legislation
on secret anti-terrorist surveillance introduced in 2011. The court held        E
that the legislation in question did not have sufficient safeguards to avoid
abuse. Notably, the scope of the measures could include virtually anyone
in Hungary, with new technologies enabling the Government to intercept
masses of data easily concerning even persons outside the original range
of operation. Furthermore, the ordering of such measures was taking             F
place entirely within the realm of the executive and without an assessment
of whether interception of communications was strictly necessary. There
were no effective remedial measures in place, let alone judicial ones.
The court held:
        “77. … Rule of law implies, inter alia, that an interference by the     G
        executive authorities with an individual right should be subject to
        an effective control which should normally be assured by the
        judiciary, at least in the last resort…”
74
    2.03. 2010, 1 BvR 256 / 08 , 1 BvR 263 / 08 , 1 BvR 586 / 08
75
    [2016] 2 W.L.R. 873
76
   Eur. Ct. H.R. 2016                                                           H
326            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           187. Thus, it is evident from various case laws cited above, that
      data collection, usage and storage (including biometric data) in Europe
      requires adherence to the principles of consent, purpose and storage
      limitation, data differentiation, data exception, data minimization,
      substantive and procedural fairness and safeguards, transparency, data
      protection and security. Only by such strict observance of the above
B
      principles can the State successfully discharge the burden of
      proportionality while affecting the privacy rights of its citizens.
             188. The jurisprudence with respect to collection, use and retention
      of biometric information in the United States differs from the EU. In the
      US context, there is no comprehensive data protection regime. This is
C     because of the federal system of American government, there are multiple
      levels of law enforcement¯federal, state, and local. Different states have
      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
D     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.
E     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
F     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 from case law in other
      jurisdiction and noted in paragraph 187 above.
G
            Data Minimisation:
             191. The petitioners have argued that the Act enables data
      collection indiscriminately regarding all aspects of a person (biometrics,
      demographic details, authentication records, meta-data related to
      transaction) even though such data has no nexus to the purported object
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            327
                     [A. K. SIKRI, J.]

of subsidies, thus violating the principle of data minimization. The data       A
collected is sufficient to indicate religion, class, social status, income,
education and intimate personal details. Under Section 32 of the Act,
authentication records are stored in the central database in the manner
prescribed under the Regulations. Regulation 26 of the Authentication
Regulations requires UIDAI to store “authentication transaction data”
                                                                                B
consisting of: (a) authentication request data received including PID block;
(b) authentication response data sent; (c) meta data related to the
transaction; and (d) any authentication server side configurations as
necessary. The authentication record affords access to information that
can be used and analyzed to systematically track or profile an individual
and her activities.                                                             C
       192. As per the respondents, Aadhaar involves minimal identity
information for effective authentication. Four types of information
collected for providing Aadhaar:
      (i) Mandatory demographic information comprising name, date of
      birth, address and gender [Section 2(k) read with Regulation 4(1)         D
      of the Aadhaar (Enrolment and Update) Regulations, 2016];
      (ii) Optional demographic information [Section 2(k) read with
      Regulation 4(2) of the Aadhaar (Enrolment and Update)
      Regulations, 2016];
                                                                                E
      (iii) Non-core biometric information comprising photograph;
      (iv) Core biometric information comprising finger print and iris
      scan.
       193. Demographic information, both mandatory and optional, and
photographs does not raise a reasonable expectation of privacy under            F
Article 21 unless under special circumstances such as juveniles in conflict
of law or a rape victim’s identity. Today, all global ID cards contain
photographs for identification alongwith address, date of birth, gender
etc. The demographic information is readily provided by individuals
globally for disclosing identity while relating with others and while seeking
                                                                                G
benefits whether provided by government or by private entities, be it
registration for citizenship, 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
                                                                                H
328             SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     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.
B            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.
C            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) pertains to authentication. It is a process by which
D     Aadhaar number along with demographic information or biometric
      information of an individual is submitted to the CIDR for its verification.
      On submission thereof, the CIDR verifies the correctness or lack of it.
      CIDR is defined in Section 2(h). Section 10 lays down that the Authority
      may engage one or more entities to establish or maintain the CIDR and
      to perform any other functions as may be specified by regulations.
E
             197. Insofar as authentication process is concerned, that has
      already been taken note of above. The manner in which it is explained
      by the respondent authority, that may not pose much of a problem. As
      noted earlier, while seeking authentication, neither the location of the
      person whoso identity is to be verified nor the purpose for which
F     authentication of such identity is needed, comes to the knowledge of the
      Authority and, therefore, such data collected by the Authority. Therefore,
      the threat to real time surveillance and profiling may be far-fetched.
      The respondents have explained that Section 2(d) defines “authentication
      record” to mean the record of the time of authentication, identity of the
G     RE and the response provided by the authority”, Regulation 26 (a) to (d)
      does not go beyond the scope of Section 2(d). None of the four clauses
      of Regulation 26 entitle the authority to store data about the purpose for
      which authentication is being done. The device can therefore only tell
      the authority the identity of the RE, the PID, the time and nature of
      response, the code of the device and the authentication server side
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           329
                     [A. K. SIKRI, J.]

configurations. Identity of the RE does not include details of the             A
organization which is seeking authentication as an RE provides
authentication service to large number of government organizations who
have agreements with it. Such a mechanism preventing the authority
from tracking the nature of activity for which the authentication was
required. To illustrate nic.in is an RE which provides authentication
                                                                               B
service to large number of Government organisations who have
agreements with it. The authentication record would only contain
information about the identity about the RE. It will give information only
about the RE (nic.in) and not about the organisation which is requiring
authentication through the RE. In most cases the authentication is one
time. Mr. Dwivedi has also explained that yet again, there may be              C
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
                                                                               D
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    E
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         F
the Aadhaar (Authentication) Regulations, 2016 is too long a period. We
may reproduce Regulations 26 and 27 of the Aadhaar (Authentication)
Regulations, 2016 hereunder:
      “26. Storage and Maintenance of Authentication Transaction Data
      – (1) The Authority shall store and maintain authentication              G
      transaction data, which shall contain the following information:-
      (a) authentication request data received including PID block;
      (b) authentication response data sent;
      (c) meta data related to the transaction;
                                                                               H
330             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           (d) any authentication server side configurations as necessary:
            Provided that the Authority shall not, in any case, store the purpose
            of authentication.
            27. Duration of storage – (1) Authentication transaction data
            shall be retained by the Authority for a period of 6 months, and
B           thereafter archived for a period of five years.
            (2) Upon expiry of the period of five years specified in sub-
            regulation (1), the authentication transaction data shall be deleted
            except when such authentication transaction data are required to
            be maintained by a court or in connection with any pending dispute.”
C
              199. It is also submitted that Section 10 which authorises the
      Authority to engage one or more entities, which may be private entities,
      to establish and maintain CIDR is a serious threat to privacy and it even
      amounts to compromise on national sovereignty and security. Insofar as
      first argument is concerned, there appears to be some force in that. If
D     authentication is the only purpose, we fail to understand why this
      authentication record is needed to be kept for a period of 2+5 years. No
      satisfactory explanation in this behalf was given.
            200. Insofar as information regarding metadata is concerned, we
      may note that the respondents distinguished between three types of meta-
E     data :technical, business and process metadata. Process metadata
      describes the results of various operations such as logs key data, start
      time, end time, CPU seconds used, disk reads, disk writes, and rows
      processed. This data is valuable for purposes of authenticating transaction,
      troubleshooting , security, compliance and monitoring and improving
F     performance. They submit that the metadata contemplated under this
      Regulation is Process metadata.
            201. However, metadata is not defined in the Aadhaar Act. In
      common parlance, it is understood as information about data, example
      whereof was given by Mr. Sibal that the text of a message exchanged
      between two persons would be the data itself. However, surrounding
G
      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
H     under the Aadhaar Act refers to only process meta data. In support, he
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             331
                     [A. K. SIKRI, J.]

had referred to Section 2(d) of the Aadhaar Act which defines                    A
‘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
                                                                                 B
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              C
any other (new) purpose. Definition of “benefit” (Section 2(f)) and
“service” (Section 2(w)) and “subsidy” (Section 2(x)), to which the
personal data collected is supposed to be applied is not identifiable. It is
open to the executive to notify that any advantage, gift, reward, relief,
payment, provision, facility, utility or any other assistance aid, support,
grant subvention, or appropriation may be made conditional on Aadhaar            D
Authentication. Moreover, under Section 57, the State, a body corporate
or any person can avail authentication facility and access information
under CIDR. This creates an open ended and unspecified set of laws
and contracts for which Aadhaar can be used and defeats the principle
of informed consent at the time of enrolment and purpose limitation.             E
       203. Respondents controvert the aforesaid submission by arguing
that there is purpose limitation under the Aadhaar Act as purpose of use
of biometric data in the CIDR is limited to authentication for identification.
The Aadhaar holder is made aware of such use of the Aadhaar card at
the time of enrolment. The enrolling agency is obliged under the Enrolment       F
Regulations to inform the individual about the manner in which the
information shall be used, the nature of recipients with whom the
information is to be shared during authentication; and the existence of a
right to access information, the procedure for making request for such
access and details of the person/ department to whom request can be
made. This information to individual is the basis for his consent for            G
enrolment.
       204. As per the respondents, Section 57 is not an enabling provision
which allows Aadhaar to be used for purposes other than Section 7, but
is a limiting provision. It limits its use by State, Body Corporate or a
                                                                                 H
332                SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A     person by requiring it to be sanctioned by any law in force or any contract
      and making the use subject to the proviso to Section 57. The proviso
      requires the use of Aadhaar under this Section to be subject to procedure
      and obligations under Section 8 and Chapter VI of penalties. Section
      8(2)(a) requires Requesting Entities (RE) (parties authorized to carry
      out authentication under Section 57) to obtain the consent of an individual
B
      before collecting her identity information for the purposes of
      authentication in such manner as may be specified by regulations. Section
      8(3) enables this consent to be informed consent by requiring that an
      individual submitting her identity information for authentication shall be
      informed of the nature and the use of the information that may be shared
C     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.
D            Insofar as Sections 2(f), (w) and (x) are concerned, these
      provisions are discussed at a later stage77. 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:
E            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
F     for a period of 5 years thereafter. Regulation 18(3) and 20(3) allow
      Requesting entities (RE) and Authentication Service Agencies to
      retain the authentication logs for a period of 2 years and then archive
      them for 5 years. It is required to be deleted only after 7 years unless
      retained by a court. The right of the citizen to erasure of data or right to
      be forgotten is severely affected by such regulation. There is no provision
G     to delete the biometric information in any eventuality once a person is
      enrolled.
              We do not find any reason for archiving the authentication
      transaction data for a period of five years. Retention of this data for a
      77
           See paragraphs 320 to 322
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            333
                     [A. K. SIKRI, J.]

period of six months is more than sufficient after which it needs to be         A
deleted except when such authentication transaction data are required
to be maintained by a Court or in connection with any pending dispute.
Regulations 26 and 27 shall, therefore, be amended accordingly.
      Data Protection and Security:
       206. Petitioners argued that there are not enough safeguards for         B
data protection and security in the Act. Section 28 of the Act which
addresses security and confidentiality of information is vague and fails
to lay down any standard of data security or prescribe any cogent
measures which are to be taken to prevent data breaches. Section 54
empowers UIDAI to make regulations related to various data                      C
management processes, security protocol and other technology
safeguards. The Aadhaar (Data Security) Regulations, 2016 passed by
UIDAI under Section 54, vest in the authority a discretion to specify “an
information security policy” (Regulation 3). This leads to excessive
delegation. Alternatively, it has not been subject to parliamentary oversight
which Regulations under Section 54 require. Further, the CIDR central           D
database, unlike the ASAs and REs (under Authentication Regulation
22(1)), are not required to be located in data centres. The personal data
is accessible by private entities such as AUAs and KUAs and other
private entities such as banks, insurance companies and telecom service
providers. There have been numerous data breaches in the Aadhaar                E
system. These establish its vulnerability. There are not enough safeguards
from data hack and data leak. The data is being used by private parties
to build comprehensive databases containing information and profiles of
individuals. Thus the project also lacks transparency of data and its
use.
                                                                                F
      207. The Respondents contend that strong measures for data
protection and security, taken at all stages 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          G
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          H
334             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     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
B
      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)
C
             209. Other identity information is shared with Requesting Entity
      (AUAs and KUAs) only for the limited purpose of authentication. The
      data is transferred from the RE to the ASA (Authentication Service
      Agency) to the CIDR in an encrypted manner through a leased line
      circuitry using secure Protocols (Regulation 9 of the Authentication
D     Regulations). The storage of data templates is in safely located servers
      with no public internet inlet/outlet, and offline storage of original encrypted
      data (PID blocks). There are safety and security provisions such as
      audit by Information Systems Auditor. REs are appointed through
      agreement. REs can enter into agreement with sub-AUA or sub-KUA
E     with permission of the of UIDAI. Whatever identity 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 RE 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
F     are maintained for a short period. Full identity information is never
      transmitted back to RE. There is a statutory bar from sharing Biometric
      information [Section 29(1)(a)/ Section 29(4)]. The Data centres of ASA,
      REs and CIDR should be within the territory of India.
             (c) Enrolment Agencies and Registrars
G
             210. The enrolment and Authentication processes are strongly
      regulated so that data is secure. The Enrolment agency, which collects
      the biometric and demographic of the individuals during enrolment, is
      appointed either by UIDAI or by a Registrar [Section 2(s)]. The registrar
      are appointed through MoUs or agreements for enrolment and are to
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                         335
                           [A. K. SIKRI, J.]

abide by a code of conduct and processes, policies and guidelines issued    A
by the authority. They are responsible for the process of enrolment.
Categories of persons eligible for appointment are limited by the
Regulations. The agency employees a certified supervisor, an operator
and a verifier under Enrolment and Update Regulations. Registrars,
enrolling agencies are obliged to use the software provided or authorized
                                                                            B
by UIDAI for enrolment purpose. The standard software has security
features as specified by Authority. All equipment used are 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     C
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
                                                                            D
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     E
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. Their role and                  F
responsibilities are provided by Authentication Regulation 19. They are
to use certified devices, equipment, or software are duly registered with
or approved or certified by the Authority/agency. The systems and
operations are audited by information system auditor. The REs pass the
encrypted data to the CIDR through the ASA and the response (Yes/No         G
authentication or e-KYC information) also takes the same route back.
The server of the ASA has to perform basic compliance and completeness
checks on the authentication data packet before forwarding it to the
CIDR.

                                                                            H
336            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           (e) Hacking
             212. As far as hacking is concerned, the respondents submit that
      the authority has involved adequate firewalling and other safety features.
      The biometric data stored in the CIDR is stored offline. Only templates
      are online. So far there has been no incidence of hacking. However, the
B     authority is conscious of the hackers and it constantly updates itself to
      safe guard the data.
            It may, however, be mentioned that of late certain reports have
      appeared in newspapers to the effect that some people could hack the
      website of CIDR, though it is emphatically denied by the UIDAI. Since
C     there are only newspapers reports to this effect which appeared after
      the conclusion of hearing in these cases and, therefore, parties could not
      be heard on this aspect, we leave this aspect of the matter at that with a
      hope that CIDR would find out the ways and means to curb any such
      tendency.
D           (f) Biometric Solution Providers
             213. With respect to foreign companies owning software,
      Respondents submit that UIDAI has entered into licensing agreements
      with foreign biometric solution providers (BSP) for software. Even
      thought the source code of the software are retained by the BSP as it
E     constitutes their Intellectual property, the data in the server rooms is
      secure as the software operates automatically and the biometric data is
      stored offline. There is no opportunity available to BSP to extract data
      as they have no access to it.
            Substantive, Procedural or Judicial Safeguards:
F            214. Another grievance of the petitioners is that the Act lacks any
      substantive, procedural or judicial safeguards against misuse of
      individual data. Section 23(2)(k) which allows sharing information of
      Aadhaar holders, in such manner as may be specified by regulations.
      This means individual’s identity information can be shared with the
      government. This may include demographic and core biometric
G
      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,
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           337
                     [A. K. SIKRI, J.]

and meta data associated with any associated linkages, information relating    A
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                 B
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 CrPC
allows medical examination of a person arrested on a charge of
committing an offence if reasonable grounds exist for believing that an
examination of his person will afford evidence as to the commission of         C
the offence. Similarly provisions in various other statutes such as of the
Foreign Exchange Regulation Act, 1973 (Sections 34-48); the Prevention
of Money-Laundering Act, 2002 (Sections 17-19); the Narcotic Drugs
and Psychotropic Substances Act, 1985 (Sections 41-42) and the
Customs Act, 1962 (Chapter 13) which allow for search, seizure or even         D
arrest, and thereby provide access to personal information also bear a
nexus with a particular crime under investigation.
       216. As per the petitioners, the Investigating Agency can presently
access fingerprints, only limited to cases of citizens who were arrested
on the reasonable basis of having committed a crime, or were convicted         E
of a crime, as per provisions of the Identification of Prisoners Act. In all
such circumstances, not only are there adequate safeguards- such as
permission from the Magistrate that collection is necessary for the purpose
of investigation, but persons accused of an offence presently can claim
protection under Article 20(3), thereby making it incumbent upon the
investigating agency to obtain such information in accordance with law,        F
as described above. Further, unlike the Aadhaar Act, present day criminal
statutes contain provisions for destruction of some kinds of core biometric
data obtained [Section 7 of the Identification of Prisoners Act, 1920].
No such safeguards exist under the Aadhaar Act.
       217. It is also argued that Section 33(2), which permits disclosure     G
of identity information and authentication records under direction of an
officer not below the rank of Jt. Secretary to Central Government in the
interest of national security, has no provision for judicial review. The
Oversight Committee does not have a judicial member.
                                                                               H
338            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A            218. Respondents submitted that Section 29 of the Aadhaar Act
      provides protection against disclosure of core biometric information. The
      biometric information cannot shared with anyone for any reason
      whatsoever; or used for any purpose other than generation of Aadhaar
      numbers and authentication under this Act. Section 8 ensure that the
      during authentication, biometric information of an individual is only used
B
      for submission to the Central Identities Data Repository.
             219. We are of the view that most of the apprehensions of the
      petitioners stand assuaged with the treatment which is given by us to
      some of the provisions. Some of these are already discussed above and
      some provisions are debated in the next issue. Summary thereof,
C     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
D               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.

E           (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.
F           (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
G               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.
             220. With the removal of the aforesaid provisions from the statute
      and the Rules, coupled with the statement of the Authority on affidavit
H     that there is no record of any transactions carried out by the individuals
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          339
                        [A. K. SIKRI, J.]

which is even known (and, therefore, no question of the same being               A
retained by the Authority), most of the apprehensions of the petitioners
are taken care of. At the same time, we may remind ourselves of the
judgment in G. Sundarrajan v. Union of India & Ors.78. In that case,
the Court noted the safety and security risk in the setting up of the
nuclear power plant in the backdrop of Fukushima disaster and Bhopal
                                                                                 B
Gas tragedy. Yet, keeping in view the importance of generation of nuclear
energy, the Court observed that a balance should be struck between
production of nuclear energy which was of extreme importance for the
economic growth, alleviation of poverty, generation of employment, and
the smaller violation to right to life under Article 21. It took note of the
opinion of experts committee and observed that ‘adequate safety                  C
measure’ have been taken. It noted huge expenditure of money running
into crores and observed ‘apprehension however legitimate it may be,
cannot override the justification of the project. Nobody on this earth can
predict what would happen in future and to a larger extent we have to
leave it to the destiny. But once the justification test is satisfied, the
                                                                                 D
apprehension test is bound to fail. Apprehension is something we
anticipate with anxiety or fear, a fearful anticipation, which may vary
from person to person’. The Court also held that ‘nuclear power plant is
being established not to negate right to life but to protect the right to life
guaranteed under Article 21 of the Constitution. No doubt, the Court
took a view that this interest of people needed to be respected for their        E
human dignity which was divinity. However, it was also stressed that
generation of nuclear energy was a nuclear necessity and the project
was for larger public benefit and consequently, individual interest or
smaller public interest must yield. In such a situation, necessity for
‘adequate care, caution, and monitoring at every stage’ and ‘constant
                                                                                 F
vigil’ was emphasised. Safety and security 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       G
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
78
     (2013) 6 SCC 620                                                            H
340              SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A     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
B     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 stated by Mr. K.K. Venugopal,
      learned Attorney General, that an expert committee heading by Justice
      B.N. Srikrishna (Retd.) was constituted which was looking into the
      matter. The said Committee has since given its report.
C
             222. In this behalf, it may be worthwhile to mention that one of
      the first comprehensive reports on data protection and informational
      privacy was prepared by the Group of Experts 79 constituted by the
      Planning Commission of India under the Chairmanship of Retd. Justice
      A.P. Shah, which submitted a report on 16 October, 2012. The five salient
D     features of this report were expected to serve as a conceptual foundation
      for legislation protecting privacy. The framework suggested by the expert
      group was based on five salient features: (i) Technological neutrality
      and interoperability with international standards; (ii) Multi-Dimensional
      privacy; (iii) Horizontal applicability to state and non-state entities; (iv)
E     Conformity with privacy principles; and (v) A co-regulatory enforcement
      regime.
            223 The Union Government, on 31 July 2017, had constituted a
      committee chaired by Retd.Justice B N Srikrishna, former Judge of the
      Supreme Court of India to review data protection norms in the country
F     and to make recommendations. The Committee recently released its
      report and the first draft of the Personal Data Protection Bill, 2018
      which comprehensively addresses the processing of personal data where
      such data has been collected, disclosed, shared or otherwise processed
      within the territory of India. The bill has incorporated provisions and
      principles from the Europe’s General Data Protection Regulation
G     (EUGDPR).
            224. The Draft Bill replaces the traditional concepts of data
      controller i.e. the entity which processes data and data subject i.e. the
      79
        “Report of the Group of Experts on Privacy” (16 October, 2012), Government of
      India, available at http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              341
                     [A. K. SIKRI, J.]

natural person whose data is being collected, with data ‘fiduciary’ and           A
data ‘principal’. It aims to create a trust-based relationship between the
two.
       225. The Bill largely incorporates data protection principles from
the EUGDPR and EU data protection jurisprudence, including fair and
reasonable processing of data, purpose limitation, collection limitation,         B
lawful processing, storage limitation, data quality and accountability. The
Draft bill and the report cull out rights and obligations of the data fiduciary
and data controller respectively. These rights include the right to access
and correction, 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            C
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.                             D
       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        E
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 behavioural
monitoring of, or targeted advertising directed at, children and undertaking
any other processing of personal data that can cause significant harm to          F
the child.
       227. For security of data and protection of breach, the Draft Bill
has separate provisions which require use of methods such as de-
identification and encryption and other steps necessary to protect the
integrity of personal data and to prevent misuse, unauthorised access to,         G
modification, disclosure or destruction of personal data. The data fiduciary
is required to immediately notify the Authority of any personal data breach
relating to any personal data processed by the data fiduciary where
such breach is likely to cause harm to any data principal. It also
incorporates a provision for Grievance Redressal.                                 H
342               SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A            228. The Draft Bill creates several exceptions and exemptions
      for processing data by the State. These are situations where rights and
      obligations of data principals and data fiduciaries may not apply in totality.
      Such situations include national security, prevention of crime, allocation
      of resources for human development, protection of revenue, etc. The
      committee asserts that such exceptions have been envisaged in the
B
      Puttaswamy judgement as legitimate interests of the state and satisfy
      the proportionality test.
            229. The Srikrishna Committee Report and the Draft Data
      Protection Bill are the first articulation of a data protection law in our
      country. They have incorporated many of the progressive data protection
C     principles inspired by the EUGDPR. There may be indeed be scope for
      further fine tuning of this law through a consultative process, however,
      we are not far away from a comprehensive data protection regime which
      entrenches informational and data privacy within our laws and legal
      system. We hope that there would be a robust statutory regime in place
D     in near future.
             230. The aforesaid discussion leads us to hold that the protection
      that there is going to be a surveillance state created by the Aadhaar
      project is not well founded, and in any case, taken care of by the diffluence
      exercise carried out with the striking down certain offending provisions
E     in their present form.
               Privacy:
               Whether Aadhaar Act violates right to privacy and is
               unconstitutional on this ground?

F               (This issue is considered in the context of Section 7 and Section
                                      8 of the Act.)
             231. The petitioners submit that right to privacy and dignity and
      individual autonomy have been established by various cases. In Gobind
      v. State of M.P.80, this Court held:
G              “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.
      80
           (1975) 2 SCC 148
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            343
                     [A. K. SIKRI, J.]

                 xx                xx                xx                         A
      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.       B
      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     C
      in order to guarantee that the individual, his personality, and those
      things stamped with his personality shall be free from official
      interference except where a reasonable basis for intrusion exists.
      “Liberty against Government” a phrase coined by Professor
      Corwin expresses this idea forcefully. In this sense, many of the
      fundamental rights of citizens can be described as contributing to        D
      the right to privacy.
      26. As Ely says:
      “There is nothing to prevent one from using the word ‘privacy’ to
      mean the freedom to live one’s life without governmental                  E
      interference. But the Court obviously does not so use the term.
      Nor could it, for such a right is at stake in every case.”
       232. To recapitulate briefly, the judgment of K.S. Puttaswamy
has affirmed the following –
        (i) privacy has always been a natural right, and the correct position   F
has been established by a number of judgments starting from Gobind.
Privacy is a concomitant of the right of the individual to exercise control
over his or her personality. Equally, privacy is the necessary condition
precedent to the enjoyment of any of the guarantees in Part III. The
fundamental right to privacy would cover at least three aspects—(i)
                                                                                G
intrusion with an individual’s physical body, (ii) informational privacy and
(iii) privacy of choice. Further, one aspect of privacy is the right to
control the dissemination of personal information. Every individual should
have a right to be able to control exercise over his/her own life and
image as portrayed in the world and to control commercial use of his/her
identity.                                                                       H
344             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A             (ii) The sanctity of privacy lies in its functional relationship with
      dignity. Privacy ensures that a human being can lead a life of dignity by
      securing the inner recesses of the human personality from unwanted
      intrusions. While the legitimate expectation of privacy may vary from
      intimate zone to the private zone and from the private to the public arena,
      it is important to underscore that privacy is not lost or surrendered merely
B
      because the individual is in a public place. Privacy is a postulate of dignity
      itself. Privacy concerns arise when the State seeks to intrude into the
      body and the mind of the citizen.
             (iii) Privacy as intrinsic to freedom, liberty and dignity. The right
      to privacy is inherent to the liberties guaranteed by Part-III of the
C
      Constitution and privacy is an element of human dignity. The fundamental
      right to privacy derives from Part-III of the Constitution and recognition
      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.
D
             (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.
E
             (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
F     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
G     of a law (ii) must serve a legitimate State aim and (iii) proportionate.
             233. We have also remarked, in paragraph 85 above, the taxonomy
      of privacy, namely, on the basis of ‘harms’, ‘interest’ and ‘aggregation
      of rights’. We have also discussed the scope of right to privacy with

H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             345
                     [A. K. SIKRI, J.]

reference to the cases at hand and the circumstances in which such a             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. Keeping in
mind all these considerations and parameters, we proceed to deal with
                                                                                 B
the argument on right to privacy.
       234. It is argued that the Aadhaar project, during the pre-Act
period (2009/10 – July, 2016), violated the Right to Privacy with respect
to personal demographic as well as biometric information collected, stored
and shared as there was no law authorizing these actions. In a digital
                                                                                 C
society an individual has the right to protect herself by controlling the
dissemination of such personal information. Compelling an individual to
establish her identity by planting her biometric at multiple points of service
violates privacy involving the person. The seeding of Aadhaar in distinct
data bases enables the content of information about an individual that is
stored in different silos to be aggregated. This enables the State to build      D
complete profiles of individuals violating privacy through the convergence
of data.
       235. It is also contended that the citizen’s right to informational
privacy is violated by authentication under the Aadhaar Act inasmuch as
the citizen is compelled to ‘report’ her actions to the State. Even where        E
a person is availing of a subsidy, benefit or service from the State under
Section 7 of the Act, mandatory authentication through the Aadhaar
platform (without an option to the citizen to use an alternative mode of
identification) violates the right to informational privacy. An individual’s
rights and entitlements cannot be made dependent upon an invasion of
his or her bodily integrity and his or her private information which the         F
individual may not be willing to share with the State. The bargain
underlying section 7 is an unconscionable, unconstitutional bargain. Section
7 is against the constitutional 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               G
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      H
346             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     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
B
      had to be saved. The peittioners 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, leaves electronic tracks generally without her
C           knowledge. These electronic tracks contain powerful means of
            information which provide knowledge of the sort of person that
            the user is and her interests. Individually, these information silos
            may seem inconsequential. In aggregation, they disclose the nature
            of the personality: food habits, language, health, hobbies, sexual
D           preferences, friendships, ways of dress and political affiliation. In
            aggregation, information provides a picture of the being: of things
            which matter and those that don’t, of things to be disclosed and
            those best hidden…
                       xx                xx                xx
E           305. Daniel J Solove deals with the problem of “aggregation”.
            Businesses and governments often aggregate a variety of
            information fragments, including pieces of information which may
            not be viewed as private in isolation to create a detailed portrait of
            personalities and behaviour of individuals. Yet, it is now a universally
F           accepted fact that information and data flow are “increasingly
            central to social and economic ordering”. Individuals are identified
            with reference to tax records, voting eligibility, and government-
            provided entitlements. There is what is now described as “‘veillant
            panoptic assemblage’, where data gathered through the ordinary
            citizen’s veillance practices finds its way to state surveillance
G           mechanisms, through the corporations that hold that data.”
             237. It was further argued that test of proportionality was not
      satisfied as the extent of information collected is not proportionate to the
      ‘compelling interest of the State’. Various judgments were citied where
      the principle of proportionality has been established by this court. In
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            347
                        [A. K. SIKRI, J.]

Chairman, All India Railway Recruitment Board v. K Shyam Kumar                     A
and others81, this Court held as follows:
         “37. ...Proportionality requires the court to judge whether action
         taken was really needed as well as whether it was within the
         range of courses of action which could reasonably be followed.
         Proportionality is more concerned with the aims and intention of          B
         the decision-maker and whether the decision-maker has achieved
         more or less the correct balance or equilibrium. The court entrusted
         with the task of judicial review has examine whether decision
         taken by the authority is proportionate i.e. well balanced and
         harmonious, to this extent the court may indulge in a merit review
         and if the court finds that the decision is proportionate, it seldom      C
         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              D
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           E
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         F
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 a public authority, birth
certificate, school leaving certificate, PAN card, overseas Indian citizen
card/PIO/OCI of Indian origin card. There is no justification to impose
Aadhaar under as the exclusive means of identification under Section 7,            G
without which a person would be unable to secure her entitlements.
Such mandate would not only infringe upon the privacy of a person and
violate a person’s fundamental rights, but would also unreasonably deprive
81
     (2010) 6 SCC 614
                                                                                   H
348                SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A     a person of her entitlements on a ground that has little connection with
      her right to receive such entitlements.
             240. Judgment in the case of Jordan & Ors v. State82 was also
      cited wherein Sachs & O’Regan JJ. concurringly held that continuum
      of privacy rights start with the inviolable inner self, move to the
B     home, and end with the public realm; and that commitment to
      dignity invests great value in the inviolability and worth of the body.
      Decisional privacy allows individuals to make decisions about their
      own body, and is an aspect of right to self determination. It is
      underscored by personal autonomy, which prevents the State from
      using citizens as puppets and controlling their body and decisions.
C     Informational privacy deals with a person’s mind and comprises of
      (i) anonymity, (ii) secrecy, and (iii) freedom. It is premised on the
      assumption that all information about a person is in a fundamental
      way her own, for her to communicate or retain for herself as she
      sees fit.
D             241. It was submitted that privacy rights against both the State
      and non-State actors. There is a qualitative difference between right to
      privacy against the State and against Non-state actors. Subba Rao. J’s
      dissent in Kharak Singh, was relied upon wherein it was stated that the
      existence of concentrated and centralized State power, rather than its
E     actual or potential use that creates the chilling effect and leads to
      psychological restraint on the ability of citizens to think freely. Therefore,
      individuals have a higher expectation of privacy from the State. In the
      vein, it was further submitted that the State was imposing disproportionate
      and unreasonable State compulsion. States do not have the power to
      compel their citizens to do particular acts, except in a narrow
F     range of defined circumstances. As sentinels on the qui vive,
      Courts are duty bound to protect citizens against State compulsion,
      whether in the 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,
G     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 India83 elaborates
      82
           (2002) ZACC 22
      83
           Writ Petition (Civil) No. 215 of 2005
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                         349
                        [A. K. SIKRI, J.]

on the concepts of dignity, bodily integrity and decisional autonomy. For       A
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 Health84.
       242. The petitioners further submitted that although the Aadhaar         B
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. Residents
have thus been forced to obtain an Aadhaar number, for continued
access to statutory entitlements and services. 252 government                   C
schemes have been notified by various Ministries/Departments of
the Central Government under section 7 (as on 30.11.2017) requiring
Aadhaar as a condition precedent for availing services, subsidies and
benefits including for persons with disabilities, for SC/STs, and for
rehabilitation of Manual Scavengers. It has also been made mandatory            D
for mobile services, banking and tax payments, registration of students
of CBSE, amongst other things. It thus pervades every aspect of an
individual’s life. Concomitantly, there is no opt out option in the
Aadhaar Act, which makes consent irrevocable and deprives
individuals the ability to make decisions about their life.
                                                                                E
       243. As per the petitioners, this kind of mandatory nature of Section
7 violates Article 14. They submit that mandatory authentication has
caused, and continues to cause, exclusion of the most marginalized
sections of society. Proof of possession of an enrolment number or
undergoing Aadhaar authentication is a mandatory pre-requisite for
receiving subsidised food grain under the National Food Security                F
Act. It creates “undue burden” on citizen which is unconstitutional.
Successful monthly authentication is contingent on harmonious working
of all attendant Aadhaar processes and technologies–i.e. correct
Aadhaar-seeding, successful fingerprint recognition, mobile and
wireless connectivity, electricity, functional POS machines and server          G
capacity–each time. It is also dependant on age, disability (e.g.leprosy),
class of work (e.g. manual labour), and the inherently probabilistic
nature of biometric. Economic Survey of India 2016 reports that
authentication failures have been as high as 49% in Jharkhand and
84
     497 US 361 (1990)
                                                                                H
350            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     37% in Rajasthan, recognising that “failure to identify genuine
      beneficiaries results in exclusion error”.
             244. The exclusion is not simply a question of poor
      implementation that can be administratively resolved, but stems
      from the very design of the Act, i.e. the use of biometric
B     authentication as the primary method of identification. Determination
      of legal entitlements is contingent on a positive authentication response
      from the UIDAI. Biometric technology does not guarantee 100%
      accuracy and is fallible, with inevitable false positives and false
      negatives that are design flaws of such a probabilistic system,
      especially because biometrics also change over time.
C
             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
D     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
E     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 &
F     institutional structure through which residents were receiving
      entitlements. Mandatory imposition of Aadhaar violates their rights
      to choose how to identify themselves to the government in a
      reasonable and non-intrusive fashion. On making Aadhaar mandatory,
      instead of the citizen’s right to food and a correlative duty on the
      State to take action to ensure the proper fulfilment of such rights,
G     the State is exercising its power to convert the constitutional rights
      of its citizens into liabilities.
            247. As per the petitioners, having established the infringement of
      Article 21, the invasion is not justified under the principle of
      proportionality. The State’s primary justification of eliminating welfare
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            351
                     [A. K. SIKRI, J.]

leakages and ensuring “better targeting” does not stand up to judicial          A
scrutiny.
       First, it has failed to discharge its burden of showing that the
purported leakages were exclusively caused due to identity fraud,
and that those leakages would not exist if Aadhaar is implemented.
The state has not given any empirical data. Leakages exist due to eligibility   B
frauds, quantity frauds and identity frauds. Studies filed in Petitioner’s
affidavits show that eligibility and quantity frauds are the substantial
cause for leakages. Assuming that the Aadhaar Act prevents leakages,
the biometric identification system can, at best, only cure leakages related
to identity fraud. The government’s claims of savings inter alia of Rs.
14,000 crores in the PDS system, due to the deletion of 2.33 crore              C
ration cards is incorrect, inflated, and based on wrong assumptions
for the following reasons:
      (a) it admittedly does not have estimates of leakages in PDS,
      nor has any study been done to see if POS machines are
      effective in removing PDS irregularities;                                 D

      (b) it conflates issue of “bogus /ineligible ration cards” (eligibility
      fraud) with identity fraud;
      (c) the figure of 2.33 crore includes West Bengal, where
      ration cards are issued to each person, as opposed to each                E
      household;
      (d) a large number of these 2.33 crore cards were deleted
      even before Aadhaar-integration and seeding came into effect;
      (e) the savings figure includes even those eligible beneficiaries
      who have been removed from the list due to failure to link                F
      Aadhaar properly; and
      (f) it does not value the cost of loss of privacy. Most
      importantly, the basis for reaching such savings figure has not
      been disclosed.
     Similarly, incorrect averments have been made in the context               G
of LPG savings, using Aadhaar-enabled Direct Benefit Transfer
(‘DBT’) 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.       H
352             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           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
B
      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
C     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
D     ECHR were referred to to determine the contours of reasonable
      expectation of privacy. Submission was that the Act operates in the
      public and relational sphere and not in the core, private or personal sphere
      of residents. It involves minimal identity information for effective
      authentication. The purpose is limited to authentication for identification.
E     Section 29 of the Aadhaar Act, 2016 provides protection against disclosure
      of identity information without the prior consent of the ANH concerned.
      Sharing is intended only for authentication purposes. It was also submitted
      that there is no reasonable expectation of privacy with respect to identity
      information collected under the Aadhaar Act for the purposes of
      authentication and therefore Article 21 is not attracted.
F
             249. The respondents point out that four types of information
      collected for providing Aadhaar (i). Mandatory demographic information
      comprising name, date of birth, address and gender [Section 2(k) read
      with Regulation 4(1) of the Aadhaar (Enrolment and Update) Regulations,
      2016]; (ii) Optional demographic information [Section 2(k) read with
G     Regulation 4(2) of the Aadhaar (Enrolment and Update) Regulations,
      2016]. (iii) Non-core biometric information comprising photograph. (iv)
      Core biometric information comprising finger print and iris scan.
            250. Demographic information, both mandatory and optional, and
      photographs does not raise a reasonable expectation of privacy under
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            353
                     [A. K. SIKRI, J.]

Article 21 unless under special circumstances such as juveniles in conflict     A
of law or a rape victim’s identity. Today, all global ID cards contain
photographs for identification alongwith address, date of birth, gender
etc. The demographic information is readily provided by individuals
globally for disclosing identity while relating with others and while seeking
benefits whether provided by government or by private entities, be it
                                                                                B
registration for citizenship, 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             C
provides that Regulations cannot include race, religion, caste, tribe,
ethnicity, language, records of entitlement, income or medical history.
Thus, sensitive information specifically stand excluded.
        251. Face Photographs for the purpose of identification are not
covered by a reasonable expectation of privacy. Barring unpublished             D
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         E
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      F
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, laptops and mobiles. Even when a privacy right exists on a
fingerprint, it will be weak. Finger print and iris scan have been considered   G
to be the most accurate and non-invasive mode of identifying an individual.
They are taken for passports, visa and registration by the State and also
used in mobile phones, laptops, lockers etc for private use. Biometrics
are being used for unique identification in e passports by 120 countries.

                                                                                H
354             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A           (ii) Least intrusive and strict scrutiny tests do not apply in the
      proportionality test.
            Learned Attorney General argued that the “least intrusive test” is
      not applicable while asserting the test of proportionality. He relied on
      various U.S. Supreme Court judgments which explicitly rejected the test
B     and the case of Modern Dental College & Research Centre which
      does not use the least intrusive measure test while undertaking the
      proportionality test.
             Mr.Dwivedi contends that the least intrusive means of achieving
      the state object, while carrying out the proportionality test, has been
C     rejected by Indian courts in a catena of decisions as it involves a value
      judgment or second guessing of the Legislation. Such a test violates the
      separation of powers between the legislature and the judiciary. Even
      assuming that the ‘least intrusive method’ test applies, the exercise of
      determining the least intrusive method of identification is a technical
      exercise and cannot be undertaken in the court of law. Moreover, the
D     Petitioners, who have furnished smartcards as an alternative, have not
      established that smartcards are less intrusive than the Aadhaar card
      authentication process.
             The argument of applying the ‘Strict Scrutiny Test’ to test the
      Constitutionality of the Aadhaar Act by the Petitioners was flawed. Strict
E     scrutiny test is a test conceptualised in the United States, only applied to
      ‘super suspect legislations’. This compulsion arises because the scope
      of reasonable restrictions not having been specified specifically in the
      U.S. Constitution. That leaves the scrutiny of the Legislations by the
      courts based on the due process clause in the U.S. Constitution. Such a
F     test does not have applicability in India. In Ashoka Kumar Thakur (2008)
      6 SCC 1, the court referred to the test of strict scrutiny, narrow tailoring
      and compelling interest and observed that these principles cannot be
      applied directly to India as affirmative action is Constitutionally supported.
             (iii) Act satisfies Proportionality Test
G            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
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                       355
                        [A. K. SIKRI, J.]

Judiciary. The state had rejected the idea of ‘smart cards’ and other         A
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           B
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 use of Aadhaar has significantly reduced leakages in            C
LPG and MGNREGA with limited exclusion of the poor by linking
households’ LPG customer numbers with Aadhaar numbers to
eliminate ‘ghosts’ and duplicate households from beneficiary rolls.
The United Nations, in its report titled ‘Leaving No One Behind: the
imperative of inclusive development’, praised India’s decision of             D
launching Aadhaar as it will be a step forward in ensuring inclusion of all
people especially the poorest and the most marginalized.
       This court in the case of PUCL v. Union of India85 has approved
the recommendations of the High-powered committee headed by Justice
D.P Wadhwa, which recommended linking of Aadhaar with PDS                     E
and encouraged State Governments to adopt the same. The court
also lauded the efforts of State government for using biometric
identification. He also referred to the case of Binoy Viswam v. Union
of India86 where the economic rationale for and benefits of Aadhaar
was discussed and validated.
                                                                              F
      Mr. Dwivedi has argued that 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 if does not reach the intended beneficiaries. Aadhaar
is necessary for fixing this problem as there is no other identification
document which is widely and commonly possessed by the residents of           G
the country and most of the identity documents do not enjoy the quality
of portability. Moreover, Aadhaar lends assurance and accuracy on
account of existence of fake, bogus and ghost cards, vide the process of
85
     (2011) 14 SCC 331
86
     (2017) 7 SCC 59                                                          H
356               SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     de-duplication and authentication. De-duplication is ensured by the three
      sub systems are :- (i) demographic de-duplication (ii) multi-ABIS multi-
      modal biometric de-duplication (iii) manual adjudication. Biometric system
      provides high accuracy of over 99.86 %. The mixed biometric have
      been adopted only to enhance the accuracy and to reduce the errors
      which may arise on account of some residents either not having biometrics
B
      or not having some particular biometric.
               (iv) Act empowers various facets of right to life under Article 21
               The Ld. Attorney General submitted that Section 7 of the Act is
      traceable to Article 21 of the Constitution. Right to life is not a mere
C     animal existence but the right to live with human dignity which 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
D     G. Sundarrajan v. Union of India87 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
E     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
F     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 Right to Privacy and the positive obligation
      of the State to ensure right to food, shelter and employment under Article
      21 of the Constitution. Aadhaar enables furtherance of Article 21 by
G     eliminating leakages and ensuring that no deserving individual is denied
      her/his entitlement. The object of the Act i.e. the efficient, transparent
      and targeted delivery of subsidies, benefits and services to genuine
      beneficiaries is in, furtherance of various facets of Article 21 of the
      poor people of India and in furtherance of the Directive Principles
      of State Policy inter alia Articles 38,39, 41, 43, 47 and 48.
      87
H          (2013) 6 SCC 670
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             357
                     [A. K. SIKRI, J.]

       254. It was further argued that Section 7 is not a restriction at all     A
and it does not require any surrender of Fundamental Rights. It is merely
a regulatory procedure to receipt of subsidy, benefit or service. Section
7 purports to enliven the Fundamental Right under Article 21 , and Article
14. To achieve the goal of enlivening Fundamental Rights of the poor
and the deprived and to prevent siphoning off the benefits, service or
                                                                                 B
subsidy, it becomes necessary to require compliance with the condition
of undergoing authentication.
      255. Section 7 of the Aadhaar Act protects right to human dignity
recognized by Article 21 of the Constitution. Aadhaar is used as means
of authentication for availing services, benefits and subsidies. Welfare
schemes funded from the consolidated fund of India such as PDS,                  C
scholarship, mid day meals, LPG subsidies, free education ensure that
the Right to Life and Dignity of citizens are being enforced, which
includes Justice (Social, Political and Economic). It also eliminates
inequality with a view to ameliorate the poor, Dalits and other
downtrodden classes and sections of the society.                                 D
       256. In response to the argument that Fundamental Right to
Privacy cannot be waived, the Mr.Dwivedi submits that Section 7 of the
Aadhaar Act does not involve any issue of waiver. When an individual
undergoes any authentication to establish his identity to receive benefits,
services or subsidy, he does so to enliven his Fundamental Right to life         E
and personal liberty under Article 21. When an individual makes a choice
to enter into a relational sphere then his choice as to mode of identification
would automatically get restricted on account of the autonomy of the
individuals or institution with whom he wishes to relate. This is more so
where the individual seeks employment, service , subsidy or benefits.
Moreover, Aadhaar is of a Universal nature, unlike any other identification      F
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        G
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
                                                                                 H
358             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     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.
B     The state requires to strike a fair balance between the right of privacy
      and right to life of beneficiaries. An example furnished by the counsel
      for this is the Prohibition Of Employment as Manual Scavengers and
      their Rehabilitation Act, 2013, which restricts a scavenger’s right to
      practice any profession, occupation, trade or business under Article 19(g)
      is order to enliven Article 21 and 17. The counsel also gave the example
C     of the practice of dwarftossing, which was banned in France. The law
      was challenged on ground that it interferes with the economic right of
      one practicing it. The challenge was negatived on the ground that
      permitting such a practice even though voluntary will be degrading of
      human dignity by Human Right Committee. Certain choices are restricted
D     /prohibited by the Constitution itself (Articles 17,18, 23 and 24). Article
      23 abolishes forced labour so it prohibits even those choosing to indulge
      in forced labour from doing so. The aforesaid actually result in
      enhancement of the Fundamental Right. The person is emancipated from
      a social condition which is below human dignity. Similarly Section 7 of
      the Act involves an identification for the purpose of enhancing human
E     dignity.
             259. In response to the argument of Aadhaar causing exclusion,
      the learned Attorney General responded by saying that if authentication
      fails, despite more than one attempt, then the possession of Aadhaar
      number can be proved otherwise i.e. by producing the Aadhaar card.
F     And those who do not have Aadhaar number can make an application
      for enrolment and produce the enrolment id number).
             260. Before we proceed to analyse the respective submissions, it
      has also to be kept in mind that all matters pertaining to an individual do
      not qualify as being an inherent part of right to privacy. Only those
G     matters over which there would be a reasonable expectation of privacy
      are protected by Article 21. This can be discerned from the reading of
      Paras 297 to 307 of the judgment, relevant portions whereof have already
      been quoted above.

H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            359
                     [A. K. SIKRI, J.]

       261. We may also clarify that the arguments of privacy are               A
examined in the context of Sections 7 and 8 and the provisions related
thereto under the Aadhaar Act. Validity of the other provisions of the
Aadhaar Act, which is questioned in these proceedings, is dealt with
separately. As per Section 7 of the Aadhaar Act in case an individual
wants to avail any subsidy benefit or services, she is required to produce
                                                                                B
the Aadhaar number and, therefore, it virtually becomes compulsory for
such 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          C
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          D
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    E
enrolment under the Aadhaar scheme from 2009 to 2016 should be
invalidated. This aspect we propose to deal at a later stage. At this
juncture, we are looking into the vires of Aadhaar Act. In that context,
the first requirement stands fulfilled.
      (ii) Whether Aadhaar Act serves legitimate State aim?                     F

       ‘Introduction’ to the said Act gives the reasons for passing that
Act and the ‘Statement of Objects and Reasons’ mentions the objectives
sought to be achieved with the enactment of the Aadhaar Act.
‘Introduction’ reads as under:
                                                                                G
      “The Unique Identification Authority of India was established by
      a resolution of the Government of India in 2009. It was meant
      primarily to lay down policies and to implement the Unique
      Identification Scheme, by which residents of India were to be
      provided unique identity number. This number would serve as proof
                                                                                H
360            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           of identity and could be used for identification of beneficiaries for
            transfer of benefits, subsidies, services and other purposes.
            Later on, it was felt that the process of enrolment, authentication,
            security, confidentiality and use of Aadhaar related information
            be made statutory so as to facilitate the use of Aadhaar number
B           for delivery of various benefits, subsidies and services, the
            expenditures of which were incurred from or receipts therefrom
            formed part of the Consolidated Fund of India.
            The Aadhaar (Targeted Delivery of Financial and Other Subsidies,
            Benefits and Services) Bill, 2016 inter alia, provides for
C           establishment of Unique Identification Authority of India, issuance
            of Aadhaar number to individuals, maintenance and updating of
            information in the Central Identities Data Repository, issues
            pertaining to security, privacy and confidentiality of information
            as well as offences and penalties for contravention of relevant
            statutory provisions.”
D
             In the Statement of Objects and Reasons, it is inter alia mentioned
      that though number of social benefits schemes have been floated by the
      Government, the failure to establish identity of an individual has proved
      to be a major hindrance for successful implementation of those
      programmes as it was becoming difficult to ensure that subsidies, benefits
E     and services reach the unintended beneficiaries in the absence of a
      credible system to authenticate identity of beneficiaries. The Statement
      of Objects and Reasons also discloses that over a period of time, the use
      of Aadhaar number has been increased manifold and, therefore, it is
      also necessary to take measures relating to ensuring security of the
F     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
G           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;
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           361
                        [A. K. SIKRI, J.]

         (b) requiring Aadhaar numbers for identifying an individual for          A
         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;         B
         (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 individuals in the       C
         Central Identities Data Repository in such manner as may be
         specified by regulations;
         (f) measures pertaining to security, privacy and confidentiality of
         information in possession or control of the Authority including
         information stored in the Central Identities Data Repository; and        D
         (g) offences and penalties for contravention of relevant statutory
         provisions.”
      262. After taking into consideration the Statement of Objects and
Reasons, a two Judge Bench of this Court in Binoy Viswam v. Union of
                                                                                  E
India & Ors.88, recapitulated the objectives of Aadhaar in the following
manner:
         “125. By making use of the technology, a method is sought to be
         devised, in the form of Aadhaar, whereby identity of a person is
         ascertained in a flawless manner without giving any leeway to
                                                                                  F
         any individual to resort to dubious practices of showing multiple
         identities 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               G
         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
88
     (2017) 7 SCC 59                                                              H
362      SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     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
B
      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, after the country adopted the policy
C     of liberalisation and entered the era of, what is known as,
      globalisation. Economic growth in the last decade has been
      phenomenal and for many years, the Indian economy grew at
      highest rate in the world. At the same time, it is also a fact that in
      spite of significant political and economic success which has proved
D     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
E     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
F        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
G        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 continued lack of essential social services (from
         schooling and health care to the provision of safe water and
         drainage) for a huge part of the population. As we will presently
H        discuss, while India has been overtaking other countries in the
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          363
                   [A. K. SIKRI, J.]

      progress of its real income, it has been overtaken in terms of        A
      social indicators by many of these countries, even within the
      region of South Asia itself (we go into this question more fully
      in Chapter 3, ‘India in Comparative Perspective’).
      To point to just one contrast, even though India has significantly
      caught up with China in terms of GDP growth, its progress has         B
      been very much slower than China’s in indicators such as
      longevity, literacy, child undernourishment and maternal
      mortality. In South Asia itself, the much poorer economy of
      Bangladesh has caught up with and overtaken India in terms
      of many social indicators (including life expectancy,
      immunisation of children, infant mortality, child                     C
      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               D
      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     E
   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           F
   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, devised and floated from time to
   time by the Government, keeping aside substantial amount of
   money earmarked for spending on socially and economically                G
   backward classes. 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
                                                                            H
364             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           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
B
            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
C     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, benefits
      and subsidies which are funded from the Consolidated Fund of India. In
D     discharge of its solemn Constitutional obligation to enliven the
      Fundamental Rights of life and personal liberty (Article 21) to ensure
      Justice, Social, Political and Economic and to eliminate inequality (Article
      14) with a view to ameliorate the lot of the poor and the Dalits, the
      Central Government has launched several welfare schemes. Some such
      schemes are PDS, scholarships, mid day meals, LPG subsidies, etc.
E     These schemes involve 3% percentage of the GDP and involve a huge
      amount 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
F     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
G     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
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           365
                        [A. K. SIKRI, J.]

shift in addressing the problem of security and eradicating extreme poverty       A
and hunger. The shift is from the welfare approach to a right based
approach. As a consequence, right of everyone to adequate food no
more remains based on Directive Principles of State Policy (Art 47),
though the said principles remain a source of inspiration. This entitlement
has turned into a Constitutional fundamental right. This Constitutional
                                                                                  B
obligation is reinforced by obligations under International Convention.
The Universal Declaration of Human Rights (Preamble, Article 22 &
23) and International Covenant on Economic, Social and Cultural Rights
to which India is a signatory, also casts responsibilities on all State parties
to recognize the right of everyone to adequate food. Eradicating extreme
poverty and hunger is one of the goals under the Millennium Development           C
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
                                                                                  D
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                 E
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         F
judgment of this Court in His Holiness Kesavananda Bharati
Sripadagalvaru v. State of Kerala & Anr. 89 emphasised on the
attainment of socio-economic rights and its interplay with fundamental
rights. Following passages from the opinion rendered by Khanna, J.
need a specific mention:
                                                                                  G
         “1477. I may also refer to another passage on p. 99 of Grammar
         of Politics by Harold Laski:
            “The state, therefore, which seeks to survive must continually
            transform itself to the demands of men who have an equal
89
     (1973) 4 SCC 225                                                             H
366            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A              claim upon that common welfare which is its ideal purpose to
               promote.
               We are concerned here, not with the defence of anarchy, but
               with the conditions of its avoidance. Men must learn to
               subordinate their self-interest to the common welfare. The
B              privileges of some must give way before the rights of all. Indeed,
               it may be urged that the interest of the few is in fact the
               attainment of those rights, since in no other environment is
               stability to be assured.”
            1478. A modern State has to usher in and deal with large schemes
C           having social and economic content. It has to undertake the
            challenging task of what has been called social engineering, the
            essential aim of which is the eradication of the poverty, uplift of
            the downtrodden, the raising of the standards of the vast mass of
            people and the narrowing of the gulf between the rich and the
            poor. As occasions arise quite often when the individual rights
D           clash with the larger interests of the society, the State acquires
            the power to subordinate the individual rights to the larger interests
            of society as a step towards social justice. As observed by Roscoe
            Pound on p. 434 of Volume I of Jurisprudence under the heading
            “Limitations on the Use of Property”:
E              “Today the law is imposing social limitations — limitations
               regarded as involved in social life. It is endeavouring to delimit
               the individual interest better with respect to social interests
               and to confine the legal right or liberty or privilege to the bounds
               of the interest so delimited.”
F           To quote the words of Friedmann in Legal Theory:
               “But modern democracy looks upon the right to property as
               one conditioned by social responsibility by the needs of society,
               by the ‘balancing of interests’ which looms so large in modern
               jurisprudence, and not as pre-ordained and untouchable private
G              right.” (Fifth Edition, p. 406).”
            265. It would also be worthwhile to mark, in continuity with 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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            367
                     [A. K. SIKRI, J.]

      the Directive Principles of State Policy should not be permitted to       A
      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.”
                                                                                B
       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       C
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 proportionality have         D
already been discussed in detail. We have also indicated the approach
that we need to adopt while examining the issue of proportionality. This
discussion bring out that following four sub-components of proportionality
need to be satisfied:
       (a) A measure restricting a right must have a legitimate goal            E
(legitimate goal stage).
       (b) It must be a suitable means of furthering this goal (suitability
or rationale connection stage).
       (c) There must not be any less restrictive but equally effective
alternative (necessity stage).                                                  F
       (d) The measure must not have a disproportionate impact on the
right holder (balancing stage).
      268. We now proceed to examine as to whether these components
meet the required parameters in the instant case.
                                                                                G
       (a) Legitimate Goal Stage: At this stage, the exercise which needs
to be undertaken is to see that the State has legitimate goal in restricting
the right. It is also to be seen that such a goal is of sufficient importance
justifying overriding a constitutional right of freedom. Further, it impairs
freedom as little as possible.
                                                                                H
368                SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A           269. In our preceding discussion, we have already pointed out
      above that Aadhaar Act serves the legitimate state aim. That, in fact,
      provides answer to this component as well. Some additions to the said
      discussion is as follows:
               It is a matter of common knowledge that various welfare
B     schemes for marginalised section of the society have been floated by
      the successive governments from time to time in last few decades. These
      include giving ration at reasonable cost through ration shops (keeping in
      view Right to Food), according certain benefits to those who are below
      poverty line with the issuance of BPL Cards, LPG connections and LPG
      cylinders at minimal costs, old age and other kinds of pensions to deserving
C     persons, scholarships, employment to unemployed under Mahatma Gandhi
      National Rural Employment Guarantee Act, 2005 (MGNREGA) Scheme.
      There is an emergence of socio-economic rights, not only in India but in
      many other countries world-wide. There is, thus, recognisation of civil
      and political rights on the one hand and emergence of socio-economic
D     rights on the other hand. The boundaries between civil and political
      rights review as well as socio-economic rights review are rapidly
      crumbling. This rights jurisprudence created in India is a telling example.
              270. This Court has developed a reputation as both a protector of
      Human Rights and an engine of economic and social reforms. In People’s
E     Union for Civil Liberties (PUCL) v. Union of India90, 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
F     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
G     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 at ensuring that its orders are followed.
      90
           (2001) 5 Scale 303
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                 369
                        [A. K. SIKRI, J.]

       271. The purpose behind these orders was to ensure that the                      A
deserving beneficiaries of the scheme are correctly identified and are
able to receive the benefits under the said scheme, which is their
entitlement. The orders also aimed at ensuring ‘good governance’ by
bringing accountability and transparency in the distribution system with
the pious aim in mind, namely, benefits actually reached those who are
                                                                                        B
rural, poor and starving.
      272. Again, in People’s Union for Civil Liberties (PUCL) case,
orders dated January 20, 2010 were passed by the Division Bench of
this Court directing the Government of Delhi to respond to the extreme
weather conditions ‘by setting up more shelters and protecting homeless
people from the cold’. The assurance was extracted from the then                        C
Additional Solicitor General on behalf of the Government that affected
people would be provided with shelter as a matter of priority and that
arrangement should be made for this within a day.
       273. In the context of Right to Education, this Court in State of
Bihar & Ors. v. Project Uchcha Vidya, Sikshak Sangh & Ors. 91                           D
passed orders on January 3, 2006 thereby directing that a committee be
appointed to investigate departures from the State of Bihar’s policy
concerning the establishment of ‘Project Schools’ aimed at improving its
poor education record. The Court appointed a committee to investigate
the matter. The Court’s order included details as to the composition and                E
functions of the committee, guidelines as to what would constitute
irregularities in the implementation of the policy and an expectation that
the State of Bihar would take remedial action if the committee found
any irregularities. The Court’s approach to affirmative action in education
is also instructive.
                                                                                        F
       274. In Ashoka Thakur v. Union of India92, the Court upheld
the Ninety-Third Amendment to the Constitution, which allows for certain
educational institutions to put in place special admissions rules in order
to advance India’s ‘socially or educationally backward classes of citizens
or for the Scheduled Castes or the Scheduled Tribes’.93 The Court held
that people who are wealthier and better educated (the ‘creamy layer’)                  G
should be excluded from the 27 per cent quota for ‘Other Backward
91
   Civil Appeal No. 6626-6675 of 2001
92
   Writ Petition (Civil) No. 265 of 2006, judgment delivered on April 10, 2008.
93
   The challenge made in the case related to ‘Other Backward Classes’ rather than the
    Scheduled Castes or Tribes.                                                         H
370             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     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
B     Bengal94, 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 & Ors.95, 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 Pradesh96, the Court clarified
C     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 Amendment was
      passed in 2002 as Article 21A. One of the Court’s earliest cases dealing
D     with the role of the directive principles in constitutional interpretation is
      arguably also its most celebrated judgment. Some commentators see
      the decision in Olga Tellis & Ors. v. Bombay Municipal Corporation
      & Ors.97 as a recognition of enforceable right to shelter.
             276. The purpose of citing aforesaid judgments is to highlight that
E     this Court expanded the scope of Articles 14 and 21 of the Constitution
      by recognising various socio-economic rights of the poor and marginalised
      section of the society and, in the process, transforming the constitutional
      jurisprudence by putting a positive obligation on the State to fulfill its
      duty as per the Charter of Directive Principles of the State Policy,
      contained in Part IV of the Constitution. It is to be kept in mind that
F     while acknowledging that economic considerations would play a role in
      determining the full content of the right to life, the Court also held that
      right included the protection of human dignity and all that is attached to
      it, ‘namely, the bare necessities of life such as adequate nutrition, clothing
      and shelter and facilities for reading, writing and expressing oneself in
G     diverse forms’ (See Francis Coralie Mullin v. The Administrator,
      Union Territory of Delhi & Ors.98). It is, thus, of some significance to
      94
         (1996) 4 SCC 37
      95
         (1992) 3 SCC 666
      96
         (1993) 1 SCC 645
      97
         1985 SCR Supl. (2) 51
      98
         (1981) 2 SCR 516
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             371
                     [A. K. SIKRI, J.]

remark that it is this Court which has been repeatedly insisting that benefits   A
to reach the most deserving and should not get frittered mid-way. We
are of the opinion that purpose of Aadhaar Act, as captured in the
Statement of Objects and Reasons and sought to be implemented by
Section 7 of the Aadhaar Act, is to achieve the stated objectives. This
Court is convinced by its conscience that the Act is aimed at a proper
                                                                                 B
purpose, which is of sufficient importance.
       (b) Suitability or rationale connection stage:
        277. We are also of the opinion that the measures which are
enumerated and been taken as per the provisions of Section 7 read with
Section 5 of the Aadhaar Act are rationally connected with the fulfillment       C
of the objectives contained in the Aadhaar Act. It may be mentioned
that the scheme for enrolling under the Aadhaar Act and obtaining the
Aadhaar number is optional and voluntary. It is given the nomenclature
of unique identity. A person with Aadhaar number 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      D
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                 E
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                F
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 number to certain categories of persons. It
gives identity to those persons who otherwise may not have any such              G
identity. In that manner, it recognises them as residents of this nation
and in that form gives them their ‘dignity’.
      279. Section 7, which provides for necessity of authentication for
receipt of certain subsidies, benefits and services has a definite purpose
                                                                                 H
372             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     and this authentication is to achieve the objectives for which Aadhaar
      Act is enacted, namely, to ensure that such subsidies, benefits and services
      reach only the intended beneficiaries. We have seen rampant corruption
      at various levels in implementation of benevolent and welfare schemes
      meant for different classes of persons. It has resulted in depriving the
      actual beneficiaries to receive those subsidies, benefits and services which
B
      get frittered away though on papers, it is shown that they are received
      by the persons for whom they are meant. There have been cases of
      duplicate and bogus ration cards, BPL cards, LPG connections etc. Some
      persons with multiple identities getting those benefits manifold. Aadhaar
      scheme has been successful, to a great extent, in curbing the aforesaid
C     malpractices. By providing that the benefits for various welfare schemes
      shall be given to those who possess Aadhaar number and after undergoing
      the authentication as provided in Section 8 of the Aadhaar Act, the purpose
      is to ensure that only rightful persons receive these benefits. Non-action
      is not costly. It’s the affirmative action which costs the Government.
      And that money comes from exchequer. So, it becomes the duty of the
D
      Government to ensure that it goes to deserving persons. Therefore,
      second component also stands fulfilled.
            (c) Necessity Stage:
             280. Insofar as third component is concerned, most of it stands
E     answered while in the discussion that has ensued in respect of component
      No. 1 and 2. The manner in which malpractices have been committed
      in the past leaves us to hold that apart from the system of unique identity
      in Aadhaar and authentication of the real beneficiaries, there is no
      alternative measure with lesser degree of limitation which can achieve
      the same purpose. In fact, on repeated query by this Court, even the
F     petitioners could not suggest any such method.
            (d) Balancing Stage:
             281. With this, we now advert to the most important component
      of proportionality i.e. balancing between importance of achieving the
G     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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            373
                     [A. K. SIKRI, J.]

their habits and silently influence their behaviour throughout their lives.     A
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
                                                                                B
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 methods available for
identification. It is, thus, disproportionate and unreasonable state            C
compulsion.
       283. The respondents, on the other hand, have argued that there
cannot be any reasonable expectation of privacy inasmuch as the Aadhaar
Act operates in the public and relationally sphere and not in the core,
private or personal sphere of the residents. Moreover, it involves minimal      D
identity information for effective authentication which stands the test of
reasonableness. The Act is, thus, least intrusive and strict scrutiny test
does not apply in the proportionality test. It is also the case of the
respondents that the Aadhaar Act does not allow aggregation at all and,
therefore, all the apprehension are ill-founded and have no basis. It is
also submitted that the Aadhaar Act is, in fact, the facilitator in             E
empowering various facets of right to life under Article 21 and thereby
ensures that unprivileged class is also able to live with human dignity.
       284. Before undertaking this exercise of balancing, we would like
to point out that we are not convinced with the argument of the
respondents that there cannot be any reasonable expectation of privacy.         F
No doubt, the information which is gathered by the UIDAI (whether
biometric or demographic) is parted with by the individuals to other
agencies/body corporates etc. in many other kinds of transactions as
well, as pointed out by the respondents. However, the matter is to be
looked into from the angle that this information is collected and stored by     G
the State or instrumentality of the State. Therefore, it becomes important
to find out as to whether it meets the test of proportionality, and satisfies
the condition that the measure must not have disproportionate impact on
the right-holder (balancing stage). However, at the same time, the fact
that such information about individuals is in public domain may become
a relevant factor in undertaking the exercise of balancing.                     H
374            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A            285. We have already traced the objectives with which the
      Aadhaar Act has been enacted. No doubt, there is a right to privacy,
      which is now entrenched in fundamental rights. On the other hand, we
      are also concerned with the rights of those persons whose dignity is
      sought to be ensured by giving them the facilities which are necessary to
      live as dignified life. Therefore, balancing has to be done at two levels:
B
            (i) Whether, ‘legitimate state interest’ 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
C           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
D           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
E           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 intrusion into the
F     privacy of a person while ensuring that the individual gets the benefits
      under the welfare schemes.
             287. The respondents seemed to be right when they argue that all
      matters pertaining to an individual do not qualify as being an inherent
      part of right to privacy. Only those which concern matters over which
G     there can be a reasonable expectation of privacy would be protected by
      Article 21. In this behalf, we may recapitulate the discussion on some
      significant aspects in Puttaswamy:
             Privacy postulates the reservation of a private space, described
      as the right to be let alone. The integrity of the body and the sanctity of
      the mind can exist on the foundation of the individual’s ‘right to preserve
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              375
                     [A. K. SIKRI, J.]

a private space in which the human personality can develop’ and this              A
involves the ability to make choices. In this sense privacy is a postulate
of human dignity itself. 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
                                                                                  B
expectation of privacy’. Thoughts and behavioral 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. The judgment refers to the expert group report and
identifies nine privacy principles pertaining to notice, choice and consent,
collection limitation, purpose limitation, access and correction, non             C
disclosure of information, security of data, openness or proportionality
as to the scale, scope and sensitivity to the data collected, and
accountability. At the same time, privacy is a subset of liberty. All
liberties may not be exercised in privacy. It lies across the spectrum of
protected freedoms. Further, the notion of reasonable expectation of
                                                                                  D
privacy has both subjective and objective elements. At a subjective
level it means ‘an individual desires to be left alone’. On an objective
plain privacy is defined by those Constitutional values which shape the
content of the protected zone where the individual ‘ought to be left alone’.
Further, the notion of reasonable expectation of privacy ensures that
while on the one hand, the individual has a protected zone of privacy, yet        E
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        F
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,   G
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
                                                                                  H
376             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     autonomy of the individual. This is a complex exercise involving careful
      balancing. In this balancing process, following parameters are to be
      kept in mind:
            (i) The judgment also holds that the legitimate expectation of
            privacy may vary from the intimate zone to the private zone and
B           from the private to the public arenas. However, ‘the privacy is
            not lost or surrendered merely because the individual is in a public
            space’.
            (ii) One of the chief concerns is that ‘while the web is a source of
            lawful activity – both personal and commercial, concerns of
C           National security intervene since the seamless structure of the
            web can be exploited by terrorist to wreak havoc and destruction
            on civilized societies.’ Noting an article of Richard A. Posner,
            which says ‘privacy is the terrorist’s best friend..’ It is observed
            that this formulation indicates that State has legitimate interest
            when it monitors the web to secure the Nation.
D
            (iii) Apart from National security, State may have justifiable
            reasons for the collection and storage of data as where it embarks
            upon programs to provide benefits to impoverished and marginalized
            sections of society and for ensuring that scarce public resources
            are not dissipated and diverted to non-eligible recipients. Digital
E           platforms are a vital tool of ensuring good governance in a social
            welfare State and technology is a powerful enabler.
             288. In the first instance, therefore, it is to be seen as to whether
      the petitioners claim on the information supplied while authentication to
      be protected is based on reasonable expectation.
F
             289. ‘Reasonable Expectation’ involves two aspects. First, the
      individual or individuals claiming a right to privacy must establish that
      their claim involves a concern about some harm likely to be inflicted
      upon them on account of the alleged act. This concern ‘should be real
      and not imaginary or speculative’. Secondly, ‘the concern should not be
G     flimsy or trivial’. It should be a reasonable concern. It has to be borne
      in mind that the concept of ‘reasonable expectation’ has its genesis in
      the US case laws. UK judgments adopted the test of reasonable
      expectation from the US jurisprudence. The ECHR and ECJ judgments
      reveal a little divergence with regard to right of privacy. The ECHR in
      general adopts the approach that ‘a person’s reasonable expectation as
H
     JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             377
                        [A. K. SIKRI, J.]

to privacy may be significant, although, not necessarily conclusive factor’.        A
This perhaps explains the apparent conflict as regards finger prints.
      290. In the leading case Katz v. US99 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                     B
expectation is one that the society is prepared to recognize as reasonable.
This was also followed in Smith v. Marlyand100.
       291. In the judgment of Court of Appeal in R. Wood v.
Commissioner101, the appellant complained against taking and retention
of his photograph in Central London in the context of a meeting by the              C
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:
                                                                                    D
        (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 and
        psychological integrity of a person.                                        E
        (iv) Storing of data relating to private life of an individual interferes
        with Article 8. However, in determining whether information
        retained involves any private life aspect would have to be
        determined with due regard to the specific context.
                                                                                    F
        (v) Article 8, however protean, should not be so construed widely
        that its claims become unreal and unreasonable. Firstly, the threat
        to individuals personal autonomy must attain a certain level of
        seriousness. Secondly, the claimant must enjoy on the facts a
        reasonable expectation of privacy. Thirdly, the breadth of Article
        8(1) may in many instances be greatly curtailed by scope of                 G
        justifications available to the State.
        (vi) Reasonable expectation of privacy is a broad concept which
        takes into account all the circumstances of the case. They include
99
   389 U.S. 347
100
    442 US 735
101
    (2010) 1 WLR 123
                                                                                    H
378            SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A           attributes of the claimants, 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 (or presence) of
            consent, the effect on the claimant and the purpose for which
            information is taken.
B            292. Therefore, when a claim of privacy seeks inclusion in Article
      21 of the Constitution of India, the Court needs to apply the reasonable
      expectation of privacy test. It should, inter alia, see:
            (i) What is the context in which a privacy claim is set up?
            (ii) Does the claim relate to private or family life, or a confidential
C               relationship?
            (iii) Is the claim a serious one or is it trivial?
            (iv) Is the disclosure likely to result in any serious or significant
               injury and the nature and extent of disclosure?
D           (v) Is disclosure relates to personal and sensitive information of
               an identified person?
            (vi) Does disclosure relate to information already disclosed
               publicly? If so, its implication?
             293. Under the Aadhaar Act Architecture, four types of information
E
      is to be given at the time of enrolment:
            (i) Mandatory demographic information comprising name, date of
            birth, address and gender (Section 2(k) read with Regulation 4(1)
            of the Aadhaar (Enrolment and Update) Regulations, 2016).

F           (ii) Optional demographic information (Section 2(k) read with
            Regulation 4(2) of the Aadhaar (Enrolment and Update)
            Regulations, 2016).
            (iii) Non core biometric information comprising photograph.
            (iv) Core biometric information comprising finger print and iris
G           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
H     Supreme Court Rules.
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              379
                     [A. K. SIKRI, J.]

       295. As regards core biometric information which comprises finger          A
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          B
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             C
use of biometric passports. Many civilized countries with robust
democratic regime have also introduced biometric based identity cards.
Therefore, collection of information in the four different categories
mentioned above may not be unreasonable. However, as stated earlier
as well, the issue is not of taking the aforesaid information for the purpose     D
of enrolling in Aadhaar and for authentication. It is the storage and
retention of this data, whenever authentication takes place, about which
the concerns are raised by the petitioners. The fears expressed by the
petitioners are that with the storage and retention of such data, profile of
the persons can be created which is susceptible to misuse.
                                                                                  E
        297. This aspect has already been dealt with earlier and
apprehension of the petitioners are taken care of. To recapitulate, at the
time of enrolment, the data collected is minimal and there is no data
collection in respect of religion, caste, tribe, language of records of
entitlement income or medical history of the applicant at the time of
Aadhaar enrolment. Full care is taken that even the minimal data collected        F
at the time of enrolment does not remain with the enrolment agency and
immediately gets transmitted to CIDR. Even at the time of authentication,
the only exercise which is undertaken by the Authority is to see that the
finger prints and/or iris scan of the concerned person sent for
authentication match with the one which is in the system of Authority.            G
       298. Let us advert to the second facet of balancing, namely,
balancing of two fundamental rights. As already pointed out above, the
Aadhaar Act truly seeks to secure to the poor and deprived persons an
opportunity to live their life and exercise their liberty. By ensuring targeted
delivery through digital identification, it not only provides them a nationally   H
380            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     recognized identity but also attempts to ensure the delivery of benefits,
      service and subsidies with the aid of public exchequer/Consolidated Fund
      of India. National Security Food Act, 2013 passed by the Parliament
      seeks to address the issue of food, security at the household level. The
      scheme of that Act is aimed at providing food grains to those belonging
      to BPL categories. Like the MGNREGA Act, 2005 takes care of
B
      employment. The MGNREGA Act has been enacted for the
      enhancement, livelihood, security of the households in rural areas of the
      country. It guarantees at least 100 days of wage employment in every
      financial year to at least one able member of every household in the
      rural area on assets creating public work programme. Sections 3 and 4
C     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.
D
            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.
E
            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
F           minimum is in line with human dignity emerges from Article 1.1 of
            the Basic Law in conjunction with Article 20.1 of the Basic Law…
            Article 1.1 of the Basic Law established this claim. The principle
            of the social welfare State contained in Article 20.1 of the Basic
            Law, in turn grants to the Legislature the mandate to ensure a
            subsistence minimum for all that is in line with human dignity”.
G
            It is further held that:
            “if a person does not have the material means to guarantee an
            existence that is in line with human dignity because he or she is
            unable to obtain it either out of his or her gainful employment, or
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              381
                     [A. K. SIKRI, J.]

          from own property or by benefits from third parties, the State is       A
          obliged within its mandate to protect human dignity and to ensure,
          in the implementation of its social welfare state mandate, that the
          material prerequisites for this are at the disposal of the person in
          need of assistance.”
      Similarly, in a latter judgment dated July 18, 2012 while deciding          B
whether the amount of the cash benefit provided for in the Asylum Seekers
Benefits Act was constitutional it reiterated that:
          “the direct constitutional benefit claim to the guarantee of a
          dignified minimum existence does only cover those means that
          are absolutely necessary to maintain a dignified life. It guarantees    C
          the entire minimum existence as a comprehensive fundamental
          rights guarantee, that encompasses both humans’ physical
          existence, that is food, clothing, household items, housing, heating,
          hygiene, and health, and guarantees the possibility maintain
          interpersonal relationships and a minimal degree of participation
          in social, cultural and political life, since a human as a person       D
          necessarily exists in a social context..”
      300. The Constitutional Court of South Africa in Government of
the Republic of South Africa & Ors. v. Grootboom102 held that:
          “...these rights need to be considered in the context of the socio-     E
          economic rights enshrined in the Constitution. They entrench the
          right to access to land, to adequate housing and to health care,
          food, water and social security..”
       301. In 1995, Hungary’s Constitutional Court ruled that the right
to social security as contained in Article 70/E of the Constitution obligated     F
the State to secure a minimum livelihood through all of the welfare benefits
necessary for the realization of the right to human dignity.
       302. Even in Italy, the Courts have emphasized on the right to
social security.
       303. In Budina v. Russia103, the European Court of Human Rights            G
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.
102
      (2000) ZACC 19
103
      App. No. 45603/05 decided on 18.06.2009                                     H
382             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A            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:
B           “...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
C           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 same time an indispensable component of a
D           constitutional, democratic polity.”
            305. Nelson Mandela in his speech at Trafalgar Square in London
      in 2005 said:
            “...Massive poverty and obscene inequality are such terrible
E           scourges of our times – times in which the world boasts
            breathtaking advances in science, technology, industry and wealth
            accumulation – that they have to rank alongside slavery and
            apartheid as social evils...And overcoming poverty is not a gesture
            of charity. It is an act of justice. It is the protection of a
            fundamental human right, the right to dignity and a decent life.
F           While poverty persists, there is no true freedom.”
            306. Following passages by James Griffin in his book on “Human
      Rights” are worth noting :
            “10.1 THE HISTORICAL GROWTH OF RIGHTS:
G           Contrary to widespread belief, welfare rights are not a twentieth-
            century innovation, but are among the first human rights ever to
            be claimed. When in the twelfth and thirteenth centuries our
            modern conception of a right first appeared, one of the earliest
            examples offered was the right of those in dire need to receive
            aid from those in surplus. This right was used to articulate the
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           383
                   [A. K. SIKRI, J.]

   attractive view of property prevalent in the medieval Church. God         A
   has given all things to us in common, but as goods will not be
   cared for and usefully developed unless assigned to particular
   individuals, we creatures have instituted systems of property. In
   these systems, however, an owner is no more than a custodian.
   We all thus have a right, if we should fall into great need, to receive
                                                                             B
   necessary goods or, failing that, to take them from those in surplus.
   One finds, every occasionally, what seem to be human rights to
   welfare asserted in the Enlightenment, for example, by John Locke,
   Tom Paine, and William Cobbett. Following the Enlightenment,
   right to welfare have often appeared in national constitutions; for
   example, the French constitutions of the 1790s, the Prussian Civil        C
   Code (1794), the Constitutions of Sweden (1809), Norway (1814),
   The Netherlands (1814), Denmark (1849), and, skipping to the
   twentieth century, the Soviet Union (1936)-though it is not always
   clear that the drafters of these various documents thought of these
   fundamental civil rights as also human rights. By the end of the          D
   nineteenth century, political theorists were beginning to make a
   case that welfare rights are basic in much the sense that Civil and
   political rights are. 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        E
   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.          F
   ‘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….            G
   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
                                                                             H
384      SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     to social security, to work, to rest and leisure, to medical care, to
      education, and ‘to enjoy the arts and to share in scientific
      advancements and its benefits’. The Universal Declaration is a
      good example of how extensive-some would say lavish-proposed
      welfare rights have become.
B     ...If human rights are protections of a form of life that is
      autonomous and free, they should protect life as well as that form
      of it. But if they protect life, must they not also ensure the
      wherewithal to keep body and soul together-that is, some minimum
      material provision? And as mere subsistence-that is, keeping body
      and soul together-is too meager to ensure normative agency, must
C     not human rights guarantee also whatever leisure and education
      and access to the thought of others that are also necessary to
      being a normative agent?
      That is the heart of the case. It appeals to our picture of human
      agency and argues that both life and certain supporting goods are
D     integral to it. Life and certain supporting goods are necessary
      conditions of being autonomous and free. Many philosophers
      employ this necessary – condition argument to establish a human
      right to welfare-or, at least, to establish the right’s being as basic
      as any other rights.
E     I too want to invoke the necessary-conditions arguments; I should
      only want to strengthen it. It is now common to say that liberty
      rights and welfare rights are ‘indivisible’. But that, also, is too
      weak. It asserts that one cannot enjoy the benefits of liberty
      rights without enjoying the benefits of welfare rights, and vice
F     versa. But something stronger still may be said. There are forms
      of welfare that are empirically necessary conditions of a person’s
      being autonomous and free, but there are also forms that are
      logically necessary-part of what we mean in saying that a person
      has these rights. The value in which human rights are grounded
      is the value attaching to normative agency. The norm arising
G     from this value, of course, prohibits persons from attacking
      another’s autonomy and liberty. But it prohibits more. The value
      concerned is being a normative agent, a self-creator, made in god’s
      image…. The value resides not simply in one’s having the
      undeveloped, unused capacities for autonomy and liberty but also
H     in exercising them-not just in being able to be autonomous but
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          385
                   [A. K. SIKRI, J.]

   also in actually being so. The norm associated with this more            A
   complex value would address other ways of failing to be an agent.
   It would require protecting another 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
                                                                            B
   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       C
   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:               D
   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 overactivity of repressive states. Despite
   unprecedented increases in overall opulence, the contemporary            E
   world denies elementary freedoms to vast 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     F
   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          G
   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.”

                                                                            H
386             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A            307. In the aforesaid backdrop, this Court is called upon to find
      out whether Aadhaar Act strikes a fair balance between the two rights.
      In this context, we have to examine the importance of achieving the
      proper purpose and the social importance of preventing the limitation on
      the constitutional rights. Insofar as importance of achieving the proper
      purpose is concerned, that has already been highlighted above. To
B
      reiterate some of the important features, it is to be borne in mind that the
      State is using Aadhaar as an enabler for providing deserving section of
      the society their right to food, right to livelihood, right to receive pension
      and other social assistance benefits like scholarships etc. thereby bringing
      their right to life to fruition. This necessity of Aadhaar has arisen in
C     order to ensure that such benefits are given to only genuine beneficiaries.
      The Act aims at efficient, transparent and targeted delivery of subsidies,
      benefits and services. In the process, it wants to achieve the objective
      of checking the corrupt practices at various levels of distribution system
      which deprive genuine persons from receiving these benefits. There
      have been reports relating to leakages in PDS as well as in fuel subsidies
D
      and also in working of MGNREGA scheme. Mr. Venugopal, learned
      Attorney General has given the following details about these reports:
             (I) Reports relating to leakages in PDS
             Several studies initiated by the Government as well as the World
E            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
F            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.

G            (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,
H            total of 37 lakh ineligible/fake ration cards for households have
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                        387
                   [A. K. SIKRI, J.]

   been eliminated. Additionally, in Maharashtra and Madhya               A
   Pradesh, 29 lakh and 25 lakh ineligible ration cards were discovered
   and cancelled.
   (c) World Bank published a Discussion Paper No. 380 titled “India’s
   Public Distribution System: A National and International
   Perspective” dated November, 1997 co-authored by R.                    B
   Radhakrishna and K. Subbarao, in which it was found that in the
   year in 1986-87 for every one rupee (Re. 1) transferred under the
   PDS, the expenditure incurred by the central government was
   Rs. 4.27.
   (d) The Planning Commission of India in its Performance                C
   Evaluation Report titled “Performance Evaluation Report of
   Targeted Public Distribution System (TPDS)” dated March, 2005
   found as follows:
   (i) State-wise figure of excess Ration Cards in various states and
   the existence of over 1.52 Crore excess Ration Cards issued.           D
   (ii) Existence of fictitious households and identification errors
   leading to exclusion of genuine beneficiaries.
   (iii) Leakage through ghost BPL Ration Cards found to be prevalent
   in almost all the states under study.
                                                                          E
   (iv) The Leakage of food grains through ghost cards has been
   tabulated and the percentage of such leakage on an All India basis
   has been estimated at 16.67%.
   (v) It is concluded that a large part of the subsidized food-grains
   were not reaching the target group.
                                                                          F
   (II) Report relating to Fuel subsidies
   13. With respect of Kerosene subsidies:
   (a) A Report titled “Budgetary Subsidies in India – Subsidizing
   Social and Economic Services” prepared by the National Institute
   of Public Finance and Policy dated March, found that the key to        G
   lowering volume of subsidies was better targeting without which,
   there was significant leakage to unintended beneficiaries, with
   only 70% of the kerosene reaching the poorer section of society.
   (b) The Economic Survey 2014-15 at Chapter 3 titled “Wiping
   Every Tear from every Eye: The JAM Number Trinity Solution”            H
388      SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     dated February, 2015 noted that only 59 percent of subsidized
      kerosene allocated via the PDS is actually consumed by
      households, with the remainder lost to leakage and only 46 percent
      of total consumption is by poor households.
      14. With respect to the MGNREGA Scheme the following reports
B     have found large scale leakages in the scheme:
      (a) Report prepared by the V.V. Giri National Labour Institute
      and sponsored by the Department of Rural Development, Ministry
      of Rural Development, Government of India as “The study of
      Schedule of Rates for National Rural Employment Guarantee
C     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.
D
      (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
E     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
F     biometric-based unique identity for all residents in the country has
      the potential to address need of the government to ensure that
      only eligible persons are provided subsidies and benefits and that
      all eligible persons are covered.
      The relevant findings of the above Report are as follows:
G
      (i) Government of India’s expenditure on subsidies is expected to
      be about Rs.1,11,000 Crore in 2009-10, or nearly 18 per cent of
      the non-plan revenue expenditure.
      (ii) The data base of eligible persons presently maintained has
      both Type I (exclusion) and Type II (inclusion) errors. The first
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                 389
                     [A. K. SIKRI, J.]

       error arises from the difficulty faced by the poor in establishing            A
       their identity in order to be eligible for government subsidies and
       social safety net programmes. The second error arises because
       of the inability to cross-verify lists of eligible persons across district-
       level and state-level data bases to eliminate duplicate and ghost
       entries. We need to ensure that only eligible persons are provided
                                                                                     B
       subsidies and benefits and that all eligible persons are covered.
       (iii) Creation of a biometric-based unique identity for all residents
       in the country has the potential to address both these dimensions
       simultaneously. It will provide the basis for focusing subsidies to
       target groups. Possession of such an identity will also enable the
       poor and underprivileged to leverage other resources like bank                C
       accounts, cell phones, which can empower them and catalyse
       their income growth. These benefits cannot be accessed by them
       presently due to their inability to provide acceptable identification.
       The initiative to provide unique IDs has the potential to significantly
       improve the governance and delivery framework of public services              D
       while substantially reducing transaction costs, leakages and frauds.
       308. As against the above larger public interest, the invasion into
the privacy rights of these beneficiaries is minimal. By no means it can
be said that it has disproportionate effect on the right holder.
       309. Intensity of review depends upon the particular context of               E
question in a given case. There is yet another significant angle in these
matters, which has to be emphasised at this stage viz. dignity in the form
of autonomy (informational privacy) and dignity in the form of assuring
better living standards, of the same individual. In the instant case, a
holistic view of the matter, having regard to the detailed discussion                F
hereinabove, would amply demonstrate that enrolment in Aadhaar of
the unprivileged 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                   G
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.           H
390                SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     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
B
      their profiles. In fact, this technology becomes a vital tool of ensuring
      good governance in a social welfare state. We, therefore, are of the
      opinion that the Aadhaar Act meets the test of balancing as well.
             310. We may profitably refer to the judgment of this Court in
      People’s Union for Civil Liberties (PUCL) & Anr. v. Union of India
C     & Anr.104 which dealt with the issue of right to privacy vis-a-vis in public
      interest and leaned in favour of public interest which can be seen from
      the following discussion:
                “121. It has been contended with much force that the right to
                information made available to the voters/citizens by judicial
D               interpretation has to be balanced with the right of privacy of the
                spouse of the contesting candidate and any insistence on the
                disclosure of assets and liabilities of the spouse invades his/her
                right to privacy which is implied in Article 21. After giving anxious
                consideration to this argument, I am unable to uphold the same. In
E               this context, I would like to recall the apt words of Mathew, J., in
                Gobind v. State of M.P. [1969 UJ (SC) 616] While analysing the
                right to privacy as an ingredient of Article 21, it was observed:
                (SCC p. 155, para 22)
                   “22. There can be no doubt that privacy-dignity claims deserve
F                  to be examined with care and to be denied only when an
                   important countervailing interest is shown to be superior.”
                                                                 (emphasis supplied)
                   It was then said succinctly: (SCC pp. 155-56, para 22)
                   “If the court does find that a claimed right is entitled to protection
G
                   as a fundamental privacy right, a law infringing it must satisfy
                   the compelling State-interest test. Then the question would be
                   whether a State interest is of such paramount importance as
                   would justify an infringement of the right.”
      104
            (2003) 4 SCC 399
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                391
                     [A. K. SIKRI, J.]

             It was further explained: (SCC p. 156, para 23)                        A
             “[P]rivacy primarily concerns the individual. It therefore relates
             to and overlaps with the concept of liberty. The most serious
             advocate of privacy must confess that there are serious
             problems of defining the essence and scope of the right. Privacy
             interest in autonomy must also be placed in the context of other       B
             rights and values.”
             By calling upon the contesting candidate to disclose the assets
             and liabilities of his/her spouse, the fundamental right to
             information of a voter/citizen is thereby promoted. When there
             is a competition between the right to privacy of an individual         C
             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. It cannot be       D
             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           E
             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   F
             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 spouse and dependent children should be
             disclosed to the constitutional authority and the right of privacy     G
             should not come in the way of such disclosure;...”
       311. In Vernonia School District 47J v. Acton et ux., Guardians
Ad Litem for Acton105, the Supreme Court of United States, while
repelling the Fourth Amendment challenge wherein the petitioner had
105
      515 US 646 (1995)                                                             H
392                SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     adopted a Drug Policy which authorised random urinalysis drug testing
      of students participating in athletics programs, remarked as under:
                “Taking into account all the factors we have considered above-
                the decreased expectation of privacy, the relative unobtrusiveness
                of the search, and the severity of the need met by the search-we
B               conclude Vernonia’s Policy is reasonable and hence constitutional.”
             312. This very exercise of balancing of two fundamental rights
      was also carried out in Subramanian Swamy v. Union of India, Ministry
      of Law & Ors.106 where the Court dealt with the matter in the following
      manner:
C               “122. In State of Madras v. V.G. Row [State of Madras v. V.G.
                Row, AIR 1952 SC 196 : 1952 Cri LJ 966], the Court has ruled
                that 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
D               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.

E                         xx                xx                xx
                130. The principles as regards reasonable restriction as has been
                stated by this Court from time to time are that the restriction should
                not be excessive and in public interest. The legislation should not
                invade the rights and should not smack of arbitrariness. The test
F               of reasonableness cannot be determined by laying down any
                abstract standard or general pattern. It would depend upon the
                nature of the right which has been infringed or sought to be
                infringed. The ultimate “impact”, that is, effect on the right has to
                be determined. The “impact doctrine” or the principle of “inevitable
                effect” or “inevitable consequence” stands in contradistinction to
G               abuse or misuse of a legislation or a statutory provision depending
                upon the circumstances of 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
      106
            (2016) 7 SCC 221
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            393
                   [A. K. SIKRI, J.]

   of social control which includes public interest has a role. The           A
   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                          B
   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       C
   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        D
   this regard a passage from Sakal Papers (P) Ltd. [Sakal Papers
   (P) Ltd. v. Union of India, (1962) 3 SCR 842 : AIR 1962 SC
   305] has been commended to us. It says: (AIR pp. 313-14, para
   36)
       “36. … Freedom of speech can be restricted only in the
       interests of the security of the State, friendly relations with        E
       foreign State, public order, decency or morality or in relation to
       contempt of court, defamation or incitement to an offence. It
       cannot, like the freedom to carry on business, be curtailed in
       the interest of the general public. If a law directly affecting it
       is challenged, it is no answer that the restrictions enacted by it     F
       are justifiable under clauses (3) to (6). For, the scheme of Article
       19 is to enumerate different freedoms separately and then to
       specify the extent of restrictions to which they may be subjected
       and the objects for securing which this could be done. A citizen
       is entitled to enjoy each and every one of the freedoms
       together and clause (1) does not prefer one freedom to                 G
       another. That is the plain meaning of this clause. It follows
       from this that the State cannot make a law which directly
       restricts one freedom even for securing the better enjoyment
       of another freedom.”
                                                    (emphasis supplied)       H
394            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A           137. Having bestowed our anxious consideration on the said
            passage, we are disposed to think that the above passage is of no
            assistance to the petitioners, for the issue herein is sustenance
            and balancing of the separate rights, one under Article 19(1)(a)
            and the other, under Article 21. Hence, the concept of equipoise
            and counterweighing fundamental rights of one with other person.
B
            It is not a case of mere better enjoyment of another freedom. In
            Acharya Maharajshri Narendra Prasadji Anandprasadji
            Maharaj v. State of Gujarat [Acharya Maharajshri Narendra
            Prasadji Anandprasadji Maharaj v. State of Gujarat, (1975)
            1 SCC 11], it has been observed that a particular fundamental
C           right cannot exist in isolation in a watertight compartment. 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
D
            claims of different interests…
                       xx               xx                 xx
            194. Needless to emphasise that when a law limits a constitutional
            right which many laws do, such limitation is constitutional if it is
E           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
F           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
G           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
H     the same individual, which appear to be in conflict with each other, is
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                               395
                     [A. K. SIKRI, J.]

done, we find that the Aadhaar Act has struck a fair balance between               A
the right of privacy of the individual with right to life of the same individual
as a beneficiary.
      In the face of the all pervading prescript for accomplished socio-
economic rights, that need to be given to the deprived and marginalised
section of the society, as the constitutional imperative embodied in these         B
provisions of the Act, it is entitled to receive judicial imprimatur.
       Re : Argument on Exclusion:
       314. Some incidental aspects, however, remain to be discussed.
It was argued by the petitioners that the entire authentication process is
probabilistic in nature inasmuch as case of a genuine person for                   C
authentication can result in rejection as biometric technology does not
guarantee 100% accuracy. It may happen for various reasons, namely,
advance age, damage to fingerprints due to accident, etc. Even in case
of children the fingerprints may change when they grow up. The emphasis
was that there was a possibility of failure in authentication for various          D
reasons and when it happens it would result in the exclusion rather than
inclusion. In such eventuality an individual would not only be denied the
benefits of welfare schemes, it may threaten his very identity and existence
as well and it would be violative of Articles 14 and 21 of the Constitution.
The Authority has claimed that biometric accuracy is 99.76%. It was,
however, submitted that where more than 110 crores of persons have                 E
enrolled themselves, even 0.232% failure would be a phenomenal figure,
which comes to 27.60 lakh people. Therefore, the rate of exclusion is
alarming and this would result in depriving needy persons to enjoy their
fundamental rights, which is the so-called laudable objective trumpeted
by the respondents.                                                                F
        315. The aforesaid apprehensions are sought to be assuaged by
the respondents by submitting that Section 7 of the Act nowhere says
that if authentication fails, the concerned person would be deprived of
subsidies, benefits or services. It is only an enabling provision. It also
provides that in case of such a failure, such an individual would be permitted     G
to establish her identity by any other means so that genuine persons are
not deprived of their benefits which are mentioned in Section 7 as the
entire Act is to facilitate delivery of those benefits to such persons.
Learned Attorney General also referred to the Circular dated October
24, 2017 in this behalf which is issued by the Authority. That, according
to us, takes care of the problem.                                                  H
396             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A            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,
B
      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.
C            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
D     such studies. These become disputed question of facts. It will be difficult
      to invalidate provisions of Parliamentary legislations on the basis of such
      material, more particularly, when their credence has not been tested.
             318. That apart, there is another significant and more important
      aspect which needs to be highlighted. The objective of the Act is to plug
E     the leakages and ensure that fruits of welfare schemes reach the targeted
      population, for whom such schemes are actually meant. This is the
      larger purpose, and very important public purpose, which the Act is
      supposed to subserve. We have already held that it fulfills legitimate
      aim and there is a rational connection between the provisions of the Act
      and the goals which it seeks to attain. The Act passes the muster of
F     necessity stage as well when we do not find any less restrictive measure
      which could be equally effective in achieving the aim. In a situation like
      this where the Act is aimed at achieving the aforesaid public purpose,
      striving to benefit millions of deserving people, can it be invalidated only
      on the ground that there is a possibility of exclusion of some of the
G     seekers of these welfare schemes? Answer has to be in the negative.
      We may hasten to add that by no means, we are accepting that if such
      an exclusion takes place, it is justified. We are only highlighting the fact
      that the Government seems to be sincere in its efforts to ensure that no
      such exclusion takes place and in those cases where an individual who
      is rightfully entitled to benefits under the scheme is not denied such a
H     benefit merely because of failure of authentication. In this scenario, the
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             397
                     [A. K. SIKRI, J.]

entire Aadhaar project cannot be shelved. If that is done, it would cause        A
much more harm to the society.
        319. We are also conscious of the situation where the formation
of fingerprints may undergo change for various reasons. It may happen
in the case of a child after she grows up; it may happen in the case of an
individual who gets old; it may also happen because of damage to the             B
fingers as a result of accident or some disease etc. or because of
suffering of some kind of disability for whatever reason. Even iris test
can fail due to certain reasons including blindness of a person. We again
emphasise that no person rightfully entitled to the benefits shall be denied
the same on such grounds. It would be appropriate if a suitable provision
be made in the concerned regulations for establishing an identity by             C
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,         D
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          E
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          F
fruits thereof were not reaching to such people? The Aadhaar programme
was conceived and conceptualised by Mr. Nandan Nilekani under the
leadership of then Prime Minister, a great economist himself. It went
through rigorous process of testing about its effectiveness before it is
launched. This has been stated in the beginning. The entire aim behind
launching this programme is the ‘inclusion’ of the deserving persons             G
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. We again repeat
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         H
398            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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.
B
             320. Another facet which needs examination at this stage is the
      meaning that is to be assigned to the expression ‘benefits’ occurring in
      Section 7 of the Aadhaar Act, along with ‘subsidies’ and ‘services’. It
      was argued that the expression ‘benefits’ is very lose and wide and the
      respondents may attempt to bring within its sweep any and every kind of
C     governmental activity in the name of welfare of communities, which
      would result in making the requirement of Aadhaar virtually mandatory.
      It was pointed out that by issuing various circulars the Government has
      already brought within the sweep of Section 7, almost 139 such subsidies,
      services and benefits.
D           321. No doubt, the Government cannot take umbrage under the
      aforesaid provision to enlarge the scope of subsidies, services and
      benefits. ‘Benefits’ should be such which are in the nature of welfare
      schemes for which resources are to be drawn from the Consolidated
      Fund of India.
E            Therefore actions by CBSE, NEET, JEE and UGC requirements
      for scholarship shall not be covered under Section 7, unless it is
      demonstrated that the expenditure is incurred from Consolidated Fund
      of India. Further, the expression ‘benefit’ has to be read ejusdem generis
      with the preceding word ‘subsidies’.
F           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
G     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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                               399
                     [A. K. SIKRI, J.]

is only in respect of fertilizer subsidy where authentication is required          A
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
                                                                                   B
notifications relating to children are concerned, we have already dealt
with the same separately. We, thus, conclude this aspect as under:
      (a) ‘benefits’ and ‘services’ as mentioned in Section 7 should be
those which have the colour of some kind of subsidies etc., namely,
welfare schemes of the Government whereby Government is doling out
such benefits which are targeted at a particular deprived class.                   C

      (b) The expenditure thereof has to be drawn from the Consolidated
Fund of India.
      (c) On that basis, CBSE, NEET, JEE, UGC etc. cannot make the
requirement of Aadhaar mandatory as they are outside the purview of                D
Section 7 and are not backed by any law.
       Children:
       323. Though, we have upheld, in general, the validity of Section 7
of the Aadhaar Act, one specific aspect thereof is yet to be considered.
Section 7 mandates requirement of Aadhaar for the purposes of receiving            E
certain subsidies, benefits and services. Thus, any individual who wants
to seek any of these subsidies, benefits and services is compulsorily
required to have an Aadhaar number. This will include children as well.
Some of the petitioners as well as some other applicants who have
intervened in these petitions have expressed their concern about the               F
mandatory requirement of Aadhaar for children and subsequent linking
for realising their basic rights including education. They have referred to
various circulars and notifications issued through various functionaries,
schools, The Ministry of Human Resource Development (MHRD) which
have mandated production of Aadhaar card details for the children seeking
admission to schools and to link the Aadhaar of the students already               G
enrolled. We have held that Aadhaar is a voluntary scheme and, therefore,
the Aadhaar number is to be alloted to an individual on his ‘consent’. No
doubt, for the purposes of utilising any of the benefits under Section 7 of
the Aadhaar Act, it becomes necessary to have Aadhaar number.
                                                                                   H
400             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     However, the question is as to whether it can be extended to children? It
      is more so when they are not under legal capacity to provide any ‘consent’
      under the law.
             324. Article 21A of the Constitution guarantees right to education
      and makes it fundamental right of the children between 6 years and 14
B     years of age. Such a right cannot be taken away by imposing requirement
      of holding Aadhaar card, upon the children.
              325. In view thereof, admission of a child 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
C     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
D     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,
E     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 the children importance whereto is given by the
      Constitution Bench in K.S. Puttaswamy in the following words:

F           “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. They should
            not be subjected to the consequences of their childish mistakes
            and naivety, their entire life. Privacy of children will require special
G           protection not just in the context of the virtual world, but also the
            real world.”
             326. It is also important to note herein that the Juvenile Justice
      Act, 2015 while addressing children in need of care and protection and
      children in conflict with law enunciates that the records of the children
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                   401
                     [A. K. SIKRI, J.]

are confidential and will not be parted with unless requested by the                   A
Children’s Court. In contrast, the submission of the Union justifying
linking of Aadhaar with student records on malpractice in examinations
and potential bogus admissions with no safeguards whatsoever.
        327. It has to be kept in mind that when the children are incapable
of giving consent, foisting compulsion of having Aadhaar card upon them                B
would be totally disproportionate and would fail to meet the proportionality
test. As the law exists today, a child can hold property, operate a bank
account, be eligible to be a nominee in an insurance policy or a bank
account or have any financial transaction only through a legal guardian
who has to be a major of sound mind. In cases where a child is in
conflict with the law, the child is given a special criminal trial under the           C
Juvenile Justice (Care and Protection of Children) Act, 2015 and there
is a mandatory requirement for the records to be kept confidential and
destroyed so that the criminal record of the child is not maintained. This
is the position in law contained in Section 11 of the Indian Contract Act,
1872, Section 45ZA of the Banking Regulation Act, 1949, Section 39 of                  D
the Insurance Act, 1938, Section 90 of the Indian Penal Code (which
provides that consent of the child who is under 12 years of age shall not
be regarded as consent) etc. Thus, when a child is not competent to
contract; not in a position to consent; barred from transferring property;
prohibited from taking employment; and not allowed to open/operate
bank accounts and, as a consequence, not in a position to negotiate her                E
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                 F
regarded as primary consideration in our Constitution (See R.D.
Upadhyay v. State of Andhra Pradesh & Ors.107). The convention on
the Rights of Child108 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            G
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
107
   (2007) 15 SCC 49
108
   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.
                                                                                       H
402             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     parents and guardians of the children to assert their rights and act in
      their best interest and this has to be done without having any mandatory
      directives to it. The onus of overseeing and lawfully safeguarding the
      rights and immunities, to which children are entitled to, rests on the State
      and the authorities under it. Giving proper education to children and
      ensuring that they become valuable citizens of this nation subserves public
B
      interest. This is the mandate of Convention on the Rights of Child (CRC)
      as well. We may reproduce Article 27 of the CRC:
            “States Parties recognize the right of every child to a standard of
            living adequate for the child’s physical, mental, spiritual, moral
            and social development.
C
            2. The parent(s) or others responsible for the child have the
            primary responsibility to secure, within their abilities and financial
            capacities, the conditions of living necessary for the child’s
            development.
D           3. States Parties, in accordance with national conditions and within
            their means, shall take appropriate measures to assist parents and
            others responsible for the child to implement this right and shall in
            case of need provide material assistance and support programmes,
            particularly with regard to nutrition, clothing and housing.”

E           328. Article 8 of the CRC provides that:
            “(2) For the purpose of guaranteeing and promoting the rights set
            forth in the present Convention, States Parties shall render
            appropriate assistance to parents and legal guardians in the
            performance of their child-rearing responsibilities and shall ensure
F           the development of institutions, facilities and services for the care
            of children.
            (3) States Parties shall take all appropriate measures to ensure
            that children of working parents have the right to benefit from
            child-care services and facilities for which they are eligible.”
G            329. Further, Article 16 of the Convention on the Rights of Child,
      1989 bars children from being subject to arbitrary or unlawful interference
      in their privacy, family, home, or correspondence. One of the principles
      espousing the Juvenile Justice Act, 2015 is the principle of confidentiality.
      Section 24 of the Act, dealing with children in conflict with law, further
      emphasizes:
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              403
                     [A. K. SIKRI, J.]

         “(2) The Board shall make an order directing the Police, or by           A
         the Children’s court to its own registry that the relevant records
         of such conviction shall be destroyed after the expiry of the period
         of appeal or, as the case may be, a reasonable period as may be
         prescribed.”
       330. Section 3 of the Juvenile Justice Act, 2015 expounds the              B
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              C
English quote in Murray v. Big Pictures (UK) Ltd.109 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:                                                    D

         “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,         E
         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...It is at least arguable that David had a reasonable
         expectation of privacy. The fact that he is a child is in our view of    F
         greater significance than the judge thought.”
      We may also record at this stage that various circulars, orders
and notifications are issued by different Ministries and Departments under
Section 7 of the Aadhaar Act which pertain to children. Some of these
are:                                                                              G
         (1) National Child Labour Project (NCLP).
         (2) Scholarship schemes which are given to school students, like
            National Means-cum-Merit Scholarship Scheme; National
            Scheme of Incentive to Girls for Secondary Education; Benefit
109
      (2008) 3 WLR 1360                                                           H
404            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A                to 6 to 14 years children under Sarva Shiksha Abhiyan;
                 Inclusive Education of the Disabled at Secondary State; and
                 Mid-day Meal for Children.
              (3) Assistance/Scholarship given by the Department of
                 Empowerment to the Persons with Disabilities, which include
B                Scholarship Schemes for education of students with disabilities.
              (4) Following Schemes floated by the Ministry of Women and
                 Child Development, some of which relate to children:
                 (a) Supplementary Nutrition Programme under ICDS Scheme.
                 (b) Payment of honorarium to AWWs & AWHs under ICDS
C                   Scheme.
                 (c) Supplementary Nutrition for children offered at Creche
                    Centres.
                 (d) Honorarium paid towards the Creche Workers and Creche
                    Helpers.
D                (e) Maternity Benefit Programme (MBP).
                 (f) Scheme for Adolescent Girls.
                 (g) National Mission for Empowerment of Women.
                 (h) ICDS Training Programme.
                 (i) Ujjawala Scheme.
E
                 (j) Swadhar Scheme.
                 (k) Integrated Child Protection Scheme.
                 (l) STEP programme.
                 (m) Rashtriya Mahila Kosh.
F                (n) Pradhan Mantri Matru Vanana Yojana.
             (5) Painting and Essay competitions for school children under IEC
                 component of Human Resource Development and Capacity
                 Building.
             332. After considering the matter in depth and having regard to
G     the discussion aforesaid, we hold as under:
             (a) For the enrolment of children under the Aadhaar Act, it would
             be essential to have the consent of their parents/guardian.
             (b) On attaining the age of majority, such children who are enrolled
             under Aadhaar with the consent of their parents, shall be given
H            the right to exit from Aadhaar, if they so choose.
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                               405
                     [A. K. SIKRI, J.]

        (c) Insofar as the school admissions of children are concerned,            A
        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.
                                                                                   B
        (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          C
        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           D
        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 the constitutionality of certain
other provisions of Aadhaar Act as well. They have submitted their                 E
reasons on the basis of which they are seeking the declaration to the
effect these provisions are unconstitutional. We reproduce the provisions
of Aadhaar Act as well as reasons given by the petitioners in tabulated
form, as under:
   S.No. Provisions of the      Reason for being unconstitutional                  F
         Aadhaar Act
     1.   Section 2(c) and 2(d) ‘Authentication Record’ includes the time of
          - authentication and authentication and the identity of the requesting
          authentication record, entity. The UIDAI and the Authentication
          read with Section 32 Service Agency (ASA) is permitted to store this
                                 authentication record for 2+5 years (as per
                                 Regulations 20 and 26/27 of the Authentication    G
                                 Regulations).

                                By definition it provides for real-time
                                surveillance and profiling. The record stores
                                both the time and the identity of the requesting
                                entity.
                                                                                   H
406   SUPREME COURT REPORTS   [2018] 8 S.C.R.


A




B




C




D




E




F




G




H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA   407
                   [A. K. SIKRI, J.]

                                                     A




                                                     B




                                                     C




                                                     D




                                                     E




                                                     F




                                                     G




                                                     H
408   SUPREME COURT REPORTS   [2018] 8 S.C.R.


A




B




C




D




E




F




G




H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA   409
                   [A. K. SIKRI, J.]

                                                     A




                                                     B




                                                     C




                                                     D




                                                     E




                                                     F




                                                     G




                                                     H
410   SUPREME COURT REPORTS   [2018] 8 S.C.R.


A




B




C




D




E




F




G




H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA   411
                   [A. K. SIKRI, J.]

                                                     A




                                                     B




                                                     C




                                                     D




                                                     E




                                                     F




                                                     G




                                                     H
412             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A            334. We have already dealt with the issue of validity of some of
      the provisions. We would now advert to the remaining provisions, validity
      whereof is questioned.
             Keeping in view the preceding discussion, challenge to most of
      these provisions would fail. Insofar as Section 2(l) read with Regulation
B     23 of the Aadhaar (Enrolment and Update) Regulations is concerned
      which deals with ‘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
C     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
D     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
E     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
      respondents by providing appropriate mechanism. We direct the
      respondents to do the needful in this behalf. However, that would not
      render the definition unconstitutional.
F
            336. Section 3, by the very language thereof, mentions that it is an
      enabling provision which ‘entitles’ every resident to obtain Aadhaar
      number. Therefore, it is voluntary in nature. This is so held by Division
      Bench of this Court in Binoy Viswam in the following words:

G           “93. Before proceeding to discuss this argument, one aspect of
            the matter needs clarification. There was a debate as to whether
            the Aadhaar Act is voluntary or even that Act makes enrolment
            under Aadhaar mandatory.
            94. First thing that is to be kept in mind is that the Aadhaar Act is
            enacted to enable the Government to identify individuals for
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           413
                   [A. K. SIKRI, J.]

   delivery of benefits, subsidies and services under various welfare        A
   schemes. This is so mentioned in Section 7 of the Aadhaar Act
   which states that proof of Aadhaar number is necessary for receipt
   of such subsidies, benefits and services. At the same time, it cannot
   be disputed that once a person enrols himself and obtains Aadhaar
   number as mentioned in Section 3 of the Aadhaar Act, such
                                                                             B
   Aadhaar number can be used for many other purposes. In fact,
   this Aadhaar number becomes the Unique Identity (UID) of that
   person. Having said that, it is clear that there is no provision in the
   Aadhaar Act which makes enrolment compulsory. May be for
   the purpose of obtaining benefits, proof of Aadhaar card is
   necessary as per Section 7 of the Act. The proviso to Section 7           C
   stipulates that if an Aadhaar number is not assigned to enable an
   individual, he shall be offered alternate and viable means of
   identification for delivery of the subsidy, benefit or service.
   According to the petitioners, this proviso, which acknowledges
   alternate and viable means of identification, and therefore makes
                                                                             D
   Aadhaar optional and voluntary and the enrolment is not necessary
   even for the purpose of receiving subsidies, benefits and services
   under various schemes of the Government. The respondents,
   however, interpret the proviso differently and their plea is that the
   words “if an Aadhaar number is not assigned to an individual”
   deal with only that situation where application for Aadhaar has           E
   been made but for certain reasons Aadhaar number has not been
   assigned as it may take some time to give Aadhaar card. Therefore,
   this 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
                                                                             F
   remai ns that as per the Government and U IDAI 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          G
   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.”
                                                                             H
414             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A          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,
B     this provision is for the benefit of the categories of persons mentioned in
      Section 5. No doubt, it mentions children and persons with disabilities as
      well, that is an aspect is already dealt with separately.
             338. Section 6 deals only with the updation of demographic and
      biometric information. This may become necessary under certain
C     circumstances. That by itself does not take away the voluntary nature
      of the programme.
             339. Insofar Section 9 is concerned, validity thereof is challenged
      primarily on the ground that it serves as a proof of citizenship and domicile
      as well and some apprehensions are expressed on that basis. Such
D     apprehensions have already been taken care of while discussing the
      issue no. 1 pertaining to surveillance.
              340. We have already discussed in detail the purpose of constituting
      the Authority. In fact, the Act cannot operate without such an Authority
      and, therefore, it’s constitution is imperative. Challenge to validity of
E     Sections 11 to 23 is predicated on the arguments of surveillance etc.
      fails, having regard to our detailed discussion on the said aspect.
            341. Section 23 read with Section 54 give power to the Authority
      to make certain Regulations. We do not find that this provision gives
      excessive delegation to the Authority. These aspects have already been
F     discussed while determining the issue pertaining to surveillance.
             342. Apprehension expressed qua Section 29 are equally
      unfounded. This Section rather imposes restrictions on sharing
      information. No doubt, sub-section (2) states that the identity information
      (and specifically excludes core biometric information) can be shared
      only in accordance with the provisions of the Act and in such a manner
G
      as may be specified by Regulations. That would not make the provision
      unconstitutional when it is with the consent of the individual. In case,
      any regulation is made which permits sharing of information that may
      contain undesirable circumstance/reason for sharing information, such a
      regulation can always be struck down. Insofar as sub-section (4) is
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           415
                     [A. K. SIKRI, J.]

concerned, it is generally in favour of the residents/individuals inasmuch     A
as it states that information collected or created under this Act shall not
be published, displayed or posted publicly. The is grievance, however, is
that this provision enables the Authority to publish or display etc. such an
information ‘for the purposes as may be specified by regulations’. The
apprehension is that under this provision, the Government can always
                                                                               B
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        C
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.
                                                                               D
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 Authentication Regulations. This          E
provision facilitates obtaining the information from the Authority by the
Aadhaar number holder herself. We are, thus, of the opinion that Section
29 and the sharing regulations are the provisions enacted to protect the
interest of Aadhaar card holders as they put restrictions on the sharing
of information, which may be described as provisions pertaining to data
                                                                               F
protection and surveying legitimate state aim/interest as well. No doubt,
Section 29 gives power to the delegatee to make regulations. However,
as already clarified above, as and when a regulation is made, which
impinges upon the privacy right of the Aadhaar card holders, that can
always be challenged. As of now, sharing regulations do not contain any
such provision.                                                                G
       343. Section 33 provides for disclosure of information in certain
cases. The challenge to this provision is predicated on the ground that it
provides for the use of Aadhaar database for police verification, which
is against the ethos of Article 20(3) of the Constitution of India, which is
                                                                               H
416             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     a rule against self-incrimination. In order to appreciate this argument,
      we would like to reproduce Section 33 in its entirety:
            “33. (1) Nothing contained in sub-section (2) or sub-section (5) of
            section 28 or sub-section (2) of section 29 shall apply in respect
            of any disclosure of information, including identity information or
B           authentication records, made pursuant to an order of a court not
            inferior to that of a District Judge:
            Provided that no order by the court under this sub-section shall be
            made without giving an opportunity of hearing to the Authority.
            (2) Nothing contained in sub-section (2) or sub-section (5) of
C           section 28 and clause (b) of sub-section (1), sub-section (2) or
            sub-section (3) of section 29 shall apply in respect of any disclosure
            of information, including identity information or authentication
            records, made in the interest of national security in pursuance of
            a direction of an officer not below the rank of Joint Secretary to
D           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
E           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
F           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
G
      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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           417
                     [A. K. SIKRI, J.]

Sections 28 and 29 is partially lifted only in the eventuality on passing an   A
order by the court not inferior to that of District Judge. This itself is a
reasonable safeguard. Obviously, in any proceedings where the Court
feels such an information is necessary for the determination of controversy
that is before the Court, before passing such an order, it would hear the
concerned parties which will include the person in respect of whom the
                                                                               B
disclosure of information is sought. We, therefore, clarify that provisions
of sub-section (1) of Section 33 by reading into the provisions that an
individual whose information is sought to be released shall be afforded
an opportunity of hearing. There is a reasonable presumption that the
said court shall take into consideration relevant law including Article
20(3) of the Constitution as well as privacy rights or other rights of that    C
person before passing such an order. Moreover, a person in respect of
whom order is passed shall also be heard and will have right to challenge
the order in a higher forum. Not only this, proviso to Section 33(1) puts
an additional safeguard by providing that even UIDAI shall be heard
before an order is passed to this effect by the Court. In that sense, the
                                                                               D
Authority is to act as trustee and it may object to passing of the order by
the court. Such a happening is actually taken place. We have already
noticed that against the order of the High Court of Bombay in some
criminal proceedings, order was passed directing the Authority to give
biometric information of a person, the Authority had filed Special Leave
Petition (Criminal) No. 2524 of 2014 challenging the said order on the         E
ground that giving of such biometric information was contrary to the
provisions of the Aadhaar Act as the information was confidential. This
Court stays the operation of the said order which depicts that there are
sufficient safeguards provided in sub-section (1) of Section 33 itself.
       345. Adverting to sub-section (2) of Section 33, it can be seen         F
that this provision enables disclosure of information including identity
information records in the interest of national security. This provision
further states that the Authority is obliged to disclose such information in
pursuance of a direction 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. Proviso thereto sub-section (2)         G
puts an additional safeguard by prescribing 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
                                                                               H
418               SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     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
B     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
C     Protection Services Private Limited v. Union of India & Ors.110 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
D              law. It is a matter of policy. It is not for the court to decide whether
               something is in the interest of the State or not. It should be left to
               the executive. To quote Lord Hoffman in Secy. of State for Home
               Deptt. v. Rehman [(2003) 1 AC 153 : (2001) 3 WLR 877 : (2002)
               1 All ER 122 (HL)] : (AC p. 192C)

E              “… [in the matter] of national security is not a question of law. It
               is a matter of judgment and policy. Under the Constitution of the
               United Kingdom and most other countries, decisions as to whether
               something is or is not in the interests of national security are not a
               matter for judicial decision. They are entrusted to the executive.”

F              17. Thus, in a situation of national security, a party cannot insist
               for the strict observance of the principles of natural justice. In
               such cases, it is the duty of the court to read into and provide for
               statutory exclusion, if not expressly provided in the rules governing
               the field. Depending on the facts of the particular case, it will
               however be open to the court to satisfy itself whether there were
G              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.”
      10
H          (2014) 5 SCC 409
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                 419
                     [A. K. SIKRI, J.]

       348. Even in K.S. Puttaswamy, this Court has recognised data                  A
retention by the Government which may be necessitated in the public
interest and in the interest of national security. We may also usefully
refer to the judgment of People’s Union for Civil Liberties (PUCL) v.
Union of India & Anr.111. In that case, action of telephone tapping
was challenged as serious invasion of individual’s privacy. The Court
                                                                                     B
found that Section 5(2) of the Telegraph Act, 1885 permits the interception
of messages in circumstances mentioned therein i.e. ‘occurrence of any
public emergency’ or ‘in the interest of public safety’. The Court
explained these expressions in the following manner:
         “28. Section 5(2) of the Act permits the interception of messages
         in accordance with the provisions of the said section. “Occurrence          C
         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 Act. 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             D
         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                 E
         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   F
         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              G
         public safety are secretive conditions or situations. Either of the
         situations would be apparent to a reasonable person.”
      349. Having regard to the aforesaid legal position, disclosure of
information in the interest of national security cannot be faulted with.
111
      (1997) 1 SCC 301                                                               H
420            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     However, we are of the opinion that giving of such important power in
      the hands of Joint Secretary may not be appropriate. There has to be a
      higher ranking officer along with, preferably, a Judicial Officer. The
      provisions contained in Section 33(2) of the Act to the extent it gives
      power to Joint Secretary is, therefore, struck down giving liberty to the
      respondents to suitably enact a provision on the aforesaid lines, which
B
      would adequately protect the interest of individuals.
            350. We now advert to the challenge laid to Section 47 of the
      Aadhaar Act, which is captioned as ‘cognizance of offences’, it reads
      as under:
C           “47. (1) No court shall take cognizance of any offence punishable
            under this Act, save on a complaint made by the Authority or any
            officer or person authorised by it.
            (2) No court inferior to that of a Chief Metropolitan Magistrate or
            a Chief Judicial Magistrate shall try any offence punishable under
D           this Act.”
            351. Certain acts in Chapter VII are treated as offences and
      penalties are also provided, from Section 34 to Section 43.
             352. Section 44 clarifies that this Act would apply for offence or
      contravention committed even outside India. Insofar as investigation of
E     these offences is concerned, Section 45 provides that a police officer
      not below the rank of Inspector of Police shall investigate any offence
      under this Act. Section 46, thereafter, clarifies that penalties imposed
      under this Act shall not prevent the imposition of any other penalty or
      punishment under any other law for the time being in force. This scheme
F     of Chapter VII makes very strict provisions in respect of enforcement
      of the Act which includes data protection as well. Last provision in
      Chapter VII is Section 47 which provides that the cognizance would be
      taken only on a complaint made by the Authority or any officer or person
      authorised by it. Petitioners feel aggrieved by this provision as it does
      not permit an individual citizen whose rights are violated, to initiate the
G     criminal process. Apprehensions are expressed by submitting that there
      may be a possibility where the Authority itself or some Governmental
      Authority may 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.
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          421
                     [A. K. SIKRI, J.]

       353. According to the respondents, the rationale behind Section        A
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.
                                                                              B
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         C
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 provisions have been tested and
affirmed by this Court. Reference is made to the judgment in Raj Kumar
Gupta v. Lt. Governor, Delhi & Ors.112. The respondents have also
                                                                              D
taken support of the decision of this Court in State (NCT of Delhi) v.
Sanjay113 wherein Section 22 of the Mines and Minerals (Development
and Regulation) Act, 1957 was tested. Insofar as grievance and
apprehension of the petitioners is concerned, it can be taken care on
interpreting the provisions by holding that the Authority can lodge a
complaint of its own motion or at the request of the individual whose         E
rights are affected thereby.
       Notwithstanding the above, we are of the opinion that it would be
in the fitness of things if Section 47 is amended by allowing individual/
victim whose right is violated, to file a complaint and initiate the
proceedings. We hope that this aspect shall be addressed at the               F
appropriate level and if considered fit, Section 47 would be suitably
amended.
       354. Section 48 cannot be treated as vague or arbitrary. ‘Public
Emergency’ is the expression which has been used in several other
enactments and held to be constitutional. It can always be subject to         G
scrutiny of the Courts.
      355. With this, now we come to a provision which was highly
debated. At the time of arguments, the petitioners had taken strong
112
      (1997) 1 SCC 556
113
      (2014) 9 SCC 772                                                        H
422             SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     exception to some of its aspects. We may first take note of the exact
      language of this provision:
             “57. 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
B            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.”
             356. In first blush, the provision appears to be innocuous. It enables
C     Aadhaar holder to establish her identity for any purpose as well. In that
      sense, it may amount to empowering the Aadhaar number holder, when
      she is carrying unique identity. It is her identity card which she is able to
      use not only for the purposes mentioned in the Aadhaar Act but also for
      any other purpose.
D            357. The petitioners, however, have pricked the provision with
      the submission that it may be susceptible to making deep in-roads in the
      privacy of 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.
E     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.

F           (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
G
      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 corporate or person fails or denies services. In this hue, it is
      also argued that it is an excessive piece of legislation inasmuch as taking
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             423
                     [A. K. SIKRI, J.]

the umbrage of ‘any law’, the regulations etc. can be framed by including        A
within its fold much more than what is provided by Section 7 of the
Aadhaar Act. It, therefore, according to the petitioners, does not meet
the test of proportionality. Mr. Divan submits that Section 57 is also
patently unconstitutional inasmuch as it allows an unrestricted extension
of the Aadhaar platform to users who may be government agencies or
                                                                                 B
private sector operators. 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. He also submits that section 57           C
also enables commercial exploitation of an individual’s biometrics and
demographic information by the Respondents as well as private entities.
       359. As mentioned above, the respondents contend that it is only
an enabling provision which gives further facilities to Aadhaar card holder,
as per her choice and is, thus, enacted for the benefit of such individuals.     D
       360. We have already discussed in detail the principles on which
doctrine of proportionality is built upon and the test which need to be
satisfied. To put in nutshell, the proportionality principles seek to
safeguard citizens from excessive Government measures. The inquiry,
in such cases, is that a particular measure must not be disproportionate         E
in two distinctive utilitarian senses:
       (i) The cost or burdens of the measure must not clearly exceed
the likely benefits, which can be described as ‘ends’ or ‘ends-benefits’
proportionality.
       (ii) The measure must not be clearly more costly or more                  F
burdensome than equally alternative measures, which is also described
by some jurists as a concept of necessity and narrow tailoring and can
be referred to as ‘means’ or ‘alternative-means’ proportionality.
        361. We have also discussed in detail the principle of proportionality
that is developed in certain foreign legal regimes, particularly Germany         G
and Canada. The Supreme Court of Canada in R. v. Oakes114 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
114
      (1986) 1 SCR 103
                                                                                 H
424             SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A     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
B     rights of English-speaking parents in Quebec to educate their children in
      English-speaking schools115 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. Alberta116.
      In R. v. Zundel117, it also prohibited an intrusive use of a law that was
C     unrelated to the objectives originally contemplated by the Parliament
      when that law was enacted.
             363. Secondly, once an important public objective or end has been
      established, the selected means to attain it must be “reasonable and
      demonstrably justified.” The Court said in R. v. Big M Drug Mart
D     Ltd.118 that this determination involves “a form of proportionality test”.
      Although, it varies depending on the facts of the case, the test involves
      the balancing of public and individual interests based on three principles,
      which are as follows:
             (i) the means must be rationally related to the objective. The
E     court has infrequently struck down legislation for lack of any rational
      relation to the objective pursued. It employs a rather deferential and
      contextual approach to determine the rational relation of a provision to
      the desired end.
             (ii) The means should “impair ‘as little as possible’ the right or
F     freedom in question.” This is believe to be the decisive element of
      proportionality review. It requires that the legislature adopt the least
      intrusive measure capable of attaining the desired objective.
              (iii) The public objective and actual effects of the means adopted
      for its attainment must be proportionate to an important public end or
G     objective. The court noted that even if the means satisfies the first two
      criteria, it may be declared unconstitutional in view of its disproportionate
      harmful effects on an individual.
      115
          Quebec Ass’n of Protestant Sch. Bds. v. Quebec (A.G.), (1984) 2 SCR 66
      116
          (1998) 1 SCR 493
      117
          (1992) 2 SCR 731
H     118
          (1985) 1 SCR 295
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                       425
                     [A. K. SIKRI, J.]

       364. Insofar as development of law in Germany is concerned, as                      A
already discussed in detail, proportionality is defined “as an expression
of general right of the citizen towards the State that his freedom should
be limited by the public authorities only to the extent indispensable for
the protection of the public interest.”119 The principle of proportionality
in German law incorporates three important subprinciples: suitability,
                                                                                           B
necessity, and proportionality in the narrower sense. According to the
High Court of Germany, any government interference with basic rights
must be suitable and necessary for reaching the ends sought. Its
disadvantages to individuals “are generally only permissible if the protection
of others or of the public interest requires them, after having due regard
to the principle of proportionality.”                                                      C
      365. The European Union has, by and large, adopted the German
system. We have also taken note of the development of doctrine of
proportionality in India through various judgments120.
       366. We may mention here that insofar as U.S. Supreme Court is
concerned, it has refused to apply the least intrusive test 121 Though there               D
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. Puttaswamy                              E
cases, we are of the view that a part of Section 57 does not pass the
muster of proportionality doctrine.
       367. The respondents may be right in their explanation that it is
only an enabling provision which entitles Aadhaar number holder to take
the help of Aadhaar for the purpose of establishing his/her identity. If
                                                                                           F
such a person voluntary wants to offer Aadhaar card as a proof of his/
her identity, there may not be a problem.
119
    See Nicholas Emiliou, The Principle of Proportionality in European Law: A
    comparative Study 5 (Kluwer Law Int’l. 1996).
120
    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            G
    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.
121
    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.                                                                                   H
426             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A            368. Section 59, which is the last provision in the Act is aimed at
      validating actions taken by the Central Government pursuant to
      notification dated January 28, 2009 till the passing of the Act. It reads as
      under:
            “59. Anything done or any action taken by the Central Government
B           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
C           have been validly done or taken under this Act.”
             369. The challenge to this provision is on the premise that in the
      regime which prevailed prior to the passing of the Act and the enrolments
      into Aadhaar scheme were done, that happened without the consent of
      the persons who sought enrolment and, therefore, those enrolments
D     cannot be validated by making such a provision. It was argued that
      even the Act makes provisions for informed consent which is to be
      obtained from individuals at the time of enrolment and absence of such
      consent makes the very enrolment as impermissible thereby violating
      the right to privacy and such acts cannot be validated.
E            370. The contention of the respondents, on the other hand, is that
      by the very nature of the provision, it is intended to be prospective in
      nature with a clear purport in mind, namely, to validate the notification
      dated August 21, 2009 vide which the Authority was created and the
      Aadhaar scheme was launched by administrative fiat. The purpose is to
F     give it a statutory backing.
             371. We find that Section 59 uses the expression ‘anything done
      or any action under the resolution’. According to us, this terminology
      used in the provision by the legislature is clearly to cover all actions of
      the Authority including enrolment of individuals into Aadhaar scheme.
G     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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              427
                     [A. K. SIKRI, J.]

interpretation cannot be countenanced. We are of the opinion that case            A
is squarely covered by the Constitution Bench judgment of this Court in
West Ramnad Electric Distribution Co., Ltd. v. State of Madras &
Anr.122 as well as Bishambhar Nath Kohli & Ors. v. State of Uttar
Pradesh & Ors.123.
       372. We would also like to point out that the submission of the            B
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 & Anr. v. D. Achiah Chetty, Etc.124.
      The legislature is, thus, empowered to incorporate deeming
provisions in a statute. This proposition has also been repeatedly affirmed       C
by this Court. We may refer in this behalf the decision in State of
Karnataka v. State of Tamil Nadu & Ors.125 will be of relevance wherein
the Court held as under:
       “72. The second limb of submission of Mr Rohatgi as regards the
       maintainability pertains to the language employed under Section            D
       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.”                                                         E
       73. Relying on Section 6(2), which was introduced by way of the
       Amendment Act, 2002 (Act 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            F
       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       G
       possibility such an amendment to the Constitution may be ultra
122
     (1963) 2 SCR 747
123
     (1966) 2 SCR 158
124
    (1969) 1 SCC 248
125
    (2017) 3 SCC 362                                                              H
428      SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     vires affecting the power of judicial review which is a part of
      basic feature of the Constitution. The learned Senior Counsel for
      the respondent has drawn a distinction between the conferment
      and the exclusion of the power of the Supreme Court of India by
      the original Constitution and any exclusion by the constitutional
      amendment. Be that as it may, the said aspect need not be adverted
B
      to, as we are only required to interpret Section 6(2) as it exists
      today on the statute book. The said provision has been inserted to
      provide teeth to the decision of the Tribunal after its publication in
      the Official Gazette by the Central Government and this has been
      done keeping in view the Sarkaria Commission’s Report on Centre-
C     State Relations (1980). The relevant extract of the Sarkaria
      Commission’s Report reads as follows:
         “17.4.19. The Act was amended in 1980 and Section 6-A was
         inserted. This section provides for framing a scheme for giving
         effect to a Tribunal’s award. The scheme, inter alia provides
D        for the establishment of the authority, 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
E        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.
                                           ***

F        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,
G     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 distinction between having the
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          429
                   [A. K. SIKRI, J.]

   same force as an order or decree of this Court and passing of a          A
   decree by this Court after due adjudication. Parliament has
   intentionally used the words from which it can be construed that a
   legal fiction is meant to serve the purpose for which the fiction
   has been created and not intended to travel beyond it. The purpose
   is to have the binding effect of the Tribunal’s award and the
                                                                            B
   effectiveness of enforceability. Thus, it has to be narrowly
   construed regard being had to the purpose it is meant to serve.
   75. In this context, we may usefully refer to the Principles of
   Statutory Interpretation, 14th Edn. by G.P. Singh. The learned
   author has expressed thus:
                                                                            C
      “In interpreting a provision creating a legal fiction, the court is
      to ascertain for what purpose the fiction is created [State of
      Travancore-Cochin v. Shanmugha Vilas Cashewnut
      Factory, AIR 1953 SC 333; State of Bombay v. Pandurang
      Vinayak, AIR 1953 SC 244 : 1953 Cri LJ 1094] , and after
      ascertaining this, the Court is to assume all those facts and         D
      consequences which are incidental or inevitable corollaries to
      the giving effect to the fiction. [East End Dwellings Co. Ltd.v.
      Finsbury Borough Council, 1952 AC 109 : (1951) 2 All ER
      587 (HL); CIT v. S. Teja Singh, AIR 1959 SC 352] But in so
      construing the fiction it is not to be extended beyond the purpose    E
      for which it is created [Bengal Immunity Co. Ltd. v. State of
      Bihar, AIR 1955 SC 661; CIT v. Amarchand N. Shroff, AIR
      1963 SC 1448], or beyond the language of the section by which
      it is created. [CIT v. Shakuntala, AIR 1966 SC 719; Mancheri
      Puthusseri Ahmed v. Kuthiravattam Estate Receiver, (1996)
      6 SCC 185 : AIR 1997 SC 208] It cannot also be extended by            F
      importing another fiction. [CIT v. Moon Mills Ltd., AIR 1966
      SC 870] The principles stated above are ‘well-settled’. [State
      of W.B. v. Sadan K. Bormal, (2004) 6 SCC 59 : 2004 SCC
      (Cri) 1739 : AIR 2004 SC 3666] A legal fiction may also be
      interpreted narrowly to make the statute workable.                    G
      [Nandkishore Ganesh Joshi v. Commr., Municipal Corpn.
      of Kalyan and Dombivali, (2004) 11 SCC 417 : AIR 2005 SC
      34] “
   76. In Aneeta Hada v. Godfather Travels and Tours [Aneeta
   Hada v. Godfather Travels and Tours, (2012) 5 SCC 661 : (2012)
                                                                            H
430      SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     3 SCC (Civ) 350 : (2012) 3 SCC (Cri) 241] , a three-Judge Bench
      has ruled thus: (SCC p. 681, paras 37-38)
         “37. In State of T.N. v. Arooran Sugars Ltd. [State of T.N. v.
         Arooran Sugars Ltd., (1997) 1 SCC 326] the Constitution
         Bench, while dealing with the deeming provision in a statute,
B        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
C        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
D        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.
E
         38. From the aforesaid pronouncements, the principle that can
         be culled out is that it is the bounden duty of the court to
         ascertain for what purpose the legal fiction has been created.
         It is also the duty of the court to imagine the fiction with all real
         consequences and instances unless prohibited from doing so.
F        That apart, the use of the term “deemed” has to be read in its
         context and further, the fullest logical purpose and import are
         to be understood. It is because in modern legislation, the term
         “deemed” has been used for manifold purposes. The object of
         the legislature has to be kept in mind.”
G     77. In Hari Ram [State of U.P. v. Hari Ram, (2013) 4 SCC
      280 : (2013) 2 SCC (Civ) 583] , the Court has held that (SCC p.
      293, para 18) in interpreting the provision creating a legal fiction,
      the court is to ascertain for what purpose the fiction is created
      and after ascertaining the same, the court is to assume all those
      facts and consequences which are incidental or inevitable
H     corollaries for giving effect to the fiction.”
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             431
                     [A. K. SIKRI, J.]

        373. There is yet another angle from which the matter can be             A
looked into. In any case, when the Aadhaar scheme/project under the
Act has been saved from the challenge to its constitutionality, we see no
reason to invalidate the enrolments which were made prior to the passing
of this Act as it would lead to unnecessary burden and exercise of enrolling
these persons all over again. Instead the problem can be solved by eliciting
                                                                                 B
‘consent’ of all those persons who were enrolled prior to the passing of
the Act. Since, we have held that enrolment is voluntary in nature, those
who specifically refuse to give the consent, they would be allowed to
exit from Aadhaar scheme. After all, by getting Aadhaar card, an
individual so enrolled is getting a form of identity card. It would still be
open to such an individual to make use of the said Aadhaar number or             C
not. Those persons who need to avail any subsidy, benefit or service
would need Aadhaar in any case. It would not be proper to cancel their
Aadhaar cards. If direction is given to invalidate all those enrolments
which were made prior to 2016 then such persons will have to undergo
the rigours of getting themselves enrolled all over again. On the other
                                                                                 D
hand, those who do not get any benefit of the nature prescribed under
Section 7 of the Act, it would always be open for them not to make use
of Aadhaar card or to make use of this card in a limited sense, namely,
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.                                                                         E
       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                                       F
       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             G
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:

                                                                                 H
432            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           “(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 government is the underlying difference
B     between a ‘Constitution’ and ‘Constitutionalism’. Mr. Shyam Divan refers
      to the introductory chapter of his book Indian Constitutional Law, Prof.
      M.P. Jain writes:
            “Modern political thought draws a distinction between
            ‘Constitutionalism’ and ‘Constitution’. A country may have the
C           ‘Constitution’ but not necessary ‘Constitutionalism’. For example,
            a country with a dictatorship, where the dictator’s word is law,
            can be said to have a ‘Constitution’ but not ‘Constitutionalism’.
            The underlying difference between the two concepts is that a
            Constitution ought not merely to confer powers on the various
D           organs of the government, but also seek to restrain those powers.
            Constitutionalism recognises the need for government but insists
            upon limitations being placed upon governmental powers.
            Constitutionalism envisages checks and balances and putting the
            powers of the legislature and the executive under some restraints
            and not making them uncontrolled and arbitrary. Unlimited powers
E           jeopardise freedom of the people ... If the Constitution confers
            unrestrained power on either the legislature or the executive, it
            might lead to an authoritarian, oppressive government... to preserve
            the basic freedoms of the individual, and to maintain his dignity
            and personality, the Constitution should be permeated with
F           ‘Constitutionalism’: it should have some in-built restrictions on the
            powers conferred by it on governmental organs.
            ‘Constitutionalism’ connotes in essence limited government or a
            limitation on government. Constitutionalism is the antithesis of
            arbitrary powers…
G           ... As PROFESSOR VILE has remarked: “Western institutional
            theorists have concerned themselves with the problems of ensuring
            that the exercise of governmental power...should be controlled in
            order that it should not itself be destructive of the values it was
            intended to promote.”
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              433
                     [A. K. SIKRI, J.]

       376. Mr. Divan then cited various paragraphs from the cases of             A
State of M.P. v. Thakur Bharat Singh126, (1967) 2 SCR 454, Gobind
v. State of M.P.127, S.P. Sampath Kumar v. Union of India128, Sub-
Committee on Judicial Accountability v. Union of India 129, I.R.
Coelho v. State of T.N.130, Nandini Sundar v. State of Chhattisgarh131,
which have reiterated and upheld the principle of limited governments
                                                                                  B
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           C
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           D
       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             E
       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 enjoy the fruits of
       liberty; it is not the source of liberty and emphatically not the
       exclusive source.”
                                                                                  F
       378. The Directive Principles of State Policy also envisage a limited
government. Violation of fundamental rights cannot be justified by the
State on grounds of administrative convenience in meeting its obligations
under the Directive Principles of State Policy. Protection of fundamental
rights is essential for public welfare contemplated under the Directive
                                                                                  G
126
    (1967) 2 SCR 454
127
    (1975) 2 SCC 148
128
    (1987) 1 SCC 124
129
    (1991) 4 SCC 699
130
    (2007) 2 SCC 1
131
    (2011) 7 SCC 547                                                              H
434              SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A     Principles of State Policy. This has been upheld in various cases such as
      Minerva Mills Ltd. v. Union of India132, where Y.V. Chandrachud,
      C.J observed:
             “57. (…) just as the rights conferred by Part III would be without
             a radar and a compass if they were not geared to an ideal, in the
B            same manner the attainment of the ideals set out in Part IV would
             become a pretence for tyranny if the price to be paid for achieving
             that ideal is human freedoms.”
            379. Similarly, in Kesavananda Bharati v. State of Kerala133,
      S.M. Sikri, C.J., inter alia, held:
C            “209. ...In my view that meaning would be appropriate which
             would enable the country to achieve a social and economic
             revolution without destroying the democratic structure of the
             Constitution and the basic inalienable rights guaranteed in Part III
             and without going outside the contours delineated in the Preamble.
D                        xx                 xx                 xx
             299. I am unable to hold that these provisions show that some
             rights are not natural or inalienable rights. As a matter of fact,
             India was a party to the Universal Declaration of Rights which I
             have already referred to and that Declaration describes some
E            fundamental rights as inalienable. Various decisions of this Court
             describe fundamental rights as ‘natural rights’ or ‘human rights’ ...”
            380. Mr. Divan quotes Seervai in his book Constitutional Law of
      India134: A Critical Commentary where he writes:

F            “17.14... In India “Public Welfare” and “Welfare State” became
             in the language of the Chaldean Oracle, “God-given names of
             unexplained power”, which absolved judges from a critical
             examination of the nature of fundamental rights, and why they
             were made legally enforceable and the nature of directive
             principles and why they were made legally unenforceable
G
                         xx                 xx                 xx

      132
          (1980) 3 SCC 625
      133
          (1973) 4 SCC 225
      134
          H.M. Seervai, Constitutional Law of India: A Critical Commentary (N.M. Tripathi
      Private Limited, Bombay, 4th Ed., Vol. 2, 1993) at pages 1928-1937.
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             435
                     [A. K. SIKRI, J.]

         17.20...it is simply not true that persons entrusted with the duty of   A
         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          B
         to be created? The answer is, legislative and executive power
         controlled by constitutional limitations including fundamental
         rights …
                       xx            xx               xx
                                                                                 C
         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,                 D
         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                         E
         17.34 But can fundamental rights acting as limitations on legislative
         and executive power secure public welfare as the framers of our
         Constitution intended? The answer is “Yes”. For, when during the
         Emergency of 1975-77, almost all the fetters on legislative power
         became unenforceable, the public welfare suffered gravely and           F
         our free democratic constitution was twisted out of shape and
         came near to a dictatorship or a Police State ...”
      381. The principles of constitutional trust, constitutional morality
and good governance are also deeply intertwined with the principle of
minimum government. In Manoj Narula v. Union of India135, the                    G
Court, inter alia, held:
         “1. … Democracy, which has been best defined as the government
         of the people, by the people and for the people, expects prevalence
135
      (2014) 9 SCC 1
                                                                                 H
436      SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     of genuine orderliness, positive propriety, dedicated discipline and
      sanguine sanctity by constant affirmance of constitutional morality
      which is the pillar stone of good governance.
                 xx                xx                 xx
      75. The principle of constitutional morality basically means to bow
B     down to the norms of the Constitution and not to act in a manner
      which would become violative of the rule of law or reflectible of
      action in an arbitrary manner. It actually works at the fulcrum and
      guides as a laser beam in institution building. The traditions and
      conventions have to grow to sustain the value of such a morality.
C     The democratic values survive and become successful where the
      people at large and the persons in charge of the institution are
      strictly guided by the constitutional parameters without paving the
      path of deviancy and reflecting in action the primary concern to
      maintain institutional integrity and the requisite constitutional
      restraints. Commitment to the Constitution is a facet of
D     constitutional morality.”
                 xx                xx                 xx
      82. In a democracy, the citizens legitimately expect that the
      Government of the day would treat the public interest as the
E     primary one and any other interest secondary. The maxim salus
      populi suprema lex, has not only to be kept in view but also has to
      be revered. The faith of the people is embedded in the root of the
      idea of good governance which means reverence for citizenry
      rights, respect for fundamental rights and statutory rights in any
      governmental action, deference for unwritten constitutional values,
F     veneration for institutional integrity, and inculcation of accountability
      to the collective at large. It also conveys that the decisions are
      taken by the decision-making 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
G     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.
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                437
                    [A. K. SIKRI, J.]

      83. … The issue of constitutional trust arises in the context of the         A
      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
      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 him on that
          proposition. But the whole question is this: whether we should           C
          introduce all these qualifications and disqualifications in the
          Constitution itself. Is it not desirable, is it not sufficient that we
          should trust the Prime Minister, the legislature and the public
          at large watching the actions of the Ministers and the actions
          of the legislature to see that no such infamous thing is done by         D
          either of them?I think this is a case which may eminently be
          left to the good sense of the Prime Minister and to the good
          sense of the legislature with the general public holding a
          watching brief upon them. I therefore say that these
          amendments are unnecessary.”
                                                                                   E
       382. It is submitted by Mr. Divan that the Aadhaar project is
destructive of limited government, constitutionalism and constitutional
trust. The Constitution is not about the power of the State, but about the
limits on the power of the State. Post Aadhaar, the State will completely
dominate the citizen and alter the relationship between citizen and State.
The features of a Totalitarian State is seen from:                                 F

      (a) A person cannot conduct routine activities such as operating a
      bank account, holding an investment in mutual funds, receiving
      government pension, receiving scholarship, receiving food rations,
      operating a mobile phone without the State knowing about these
      activities.(Sections 7, 32 and 57 of the Aadhaar Act).                       G
      (b) The State can build a profile of the individual based on the trail
      of authentication from which the nature of the citizen’s activity
      can be determined. (Sections 2(d) and 32 of the Aadhaar Act and
      Regulation 20, 26 and 27 of the Aadhaar (Authentication)
      Regulation, 2016.                                                            H
438             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A           (c) By disabling Aadhaar the State can cause the civil death of
            the person.(Sections 23(2)(g) of the Aadhaar Act and Regulation
            27 and 28 of the Aadhaar (Enrolment and Updates) Act, 2016).
            (d) By making Aadhaar compulsory for other activities such as
            air travel, rail travel, directorship in companies, services and
B           benefits extended by 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
C           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.
             383. Mr. Sibal also added that accountability of governments and
D     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
E     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
F     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 in the case of
      Manoj Narula v. Union of India136. The idea of constitutional renaissance
G
      was first sounded in the said judgment. It is further elaborated in the
      case of Government of NCT of Delhi v. Union of India137 in the opinion
      penned down by one of us138. It stands severally described now as “a
      136
          (2014) 9 SCC 1
      137
          (2018) SCC Online SC 661
      138
           Dipak Misra, CJI
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             439
                     [A. K. SIKRI, J.]

constant awakening as regards the text, context, perspective, purpose,           A
and the rule of law”, an awakening that makes space for a “resurgent
constitutionalism” and “allows no room for absolutism” nor any “space
for anarchy”. It is held, therein the term “rational anarchism” has “no
entry in the field of constitutional governance or the rule of law” and by
the same token constitutional text and context resolutely repudiate the
                                                                                 B
lineages of absolutism or the itineraries of dictatorship. One may then
say that “constitutionalism” is the space between “absolutism” and
“anarchy” and its constant repair and renewal is the prime function of
adjudication.
      385. In an illuminating Article titled ‘A Constitutional
Renaissance’ on the aforesaid verdict authored by Prof. Upendra                  C
Baxi139, the learned Professor has made following pertinent comments:
         “Awakening is a constant process; renaissance has a beginning
         but knows no end because everyday fidelity to the vision, spirit
         and letter of the Constitution is the supreme obligation of all
         constitutional beings. One ought to witness in daily decisions an       D
         “acceptance of constitutional obligations” not just within the text
         of the Constitution but also its “silences”. To thus reawaken is to
         be “obeisant to the constitutional conscience with a sense of
         constitutional vision”. Second, courts should adopt that approach
         to interpretation which “glorifies the democratic spirit of the         E
         Constitution”. “Reverence” for the Constitution (or
         constitutionalism) is the essential first step towards constitutional
         renaissance. Third, people are the true sovereigns, never to be
         reduced to the servile status of being a subject; rather as beings
         with rights, they are the source of trust in governance and founts
         of legitimacy. The relatively autonomous legislative, executive,        F
         administrative and adjudicatory powers are legitimate only when
         placed at the service of constitutional ends. All forms of public
         power are held in trust. And political power is not an end but a
         means to constitutional governance.”
      386. Since the arguments on limited government advanced by                 G
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:
139
      Published in The Indian Express on July 16, 2018
                                                                                 H
440      SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     “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
B
      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
C     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 legislate. That is so stipulated in Schedule VII
      to the Constitution wherein List I enumerates the subjects over
      which Parliament has the dominion, List II spells out those areas
D
      where the State Legislatures have the power to make laws while
      List III is the Concurrent List which is accessible both to the
      Union as well as the State Governments. The scheme pertaining
      to making laws by Parliament as well as by the legislatures of the
      State is primarily contained in Articles 245 to 254 of the Constitution.
E     Therefore, it cannot be disputed that each wing of the State has
      to act within the sphere delineated for it under the Constitution. It
      is correct that crossing these limits would render the action of the
      State ultra vires the Constitution. When it comes to power of
      taxation, undoubtedly, power to tax is treated as sovereign power
      of any State. However, there are constitutional limitations briefly
F
      described above.
      86. In a nine Judge Bench decision of this Court in Jindal Stainless
      Ltd. & Anr. v. State of Haryana & Ors. discussion on these
      constitutional limitations are as follows:
G      “20. Exercise of sovereign power is, however, subject to
       Constitutional limitations especially in a federal system like ours
       where the States also to the extent permissible exercise the power
       to make laws including laws that levy taxes, duties and fees.
       That the power to levy taxes is subject to constitutional limitations
       is no longer res-integra. A Constitution Bench of this Court has
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           441
                   [A. K. SIKRI, J.]

    in Synthetics and Chemicals Ltd. v. State of U.P. (1990) 1               A
    SCC 109 recognised that in India the Centre and the States both
    enjoy the exercise of sovereign power, to the extent the
    Constitution confers upon them that power. This Court declared:
      “56 … We would not like, however, to embark upon any theory
      of police power because the Indian Constitution does not               B
      recognise police power as such. But we must recognise the
      exercise of Sovereign power which gives the State sufficient
      authority to enact any law subject to the limitations of the
      Constitution to discharge its functions. Hence, the Indian
      Constitution as a sovereign State has power to legislate on all
      branches except to the limitation as to the division of powers         C
      between the Centre and the States and also subject to the
      fundamental rights guaranteed under the Constitution. The
      Indian States, between the Centre and the States, has sovereign
      power. The sovereign power is plenary and inherent in every
      sovereign State to do all things which promote the health, peace,      D
      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.”                   E

    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               F
    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        G
    law which takes away or abridges, any provision of Part III.
    Any law made in contravention of the said rights shall to the
    extent of contravention be void. There is no gain saying that the
    power to enact laws has been conferred upon the Parliament
    subject to the above Constitutional limitation. So also in terms of
                                                                             H
442      SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A      Article 248, the residuary power to impose a tax not otherwise
       mentioned in the Concurrent List or the State List has been vested
       in the Parliament to the exclusion of the State legislatures, and
       the States’ power to levy taxes limited to what is specifically
       reserved in their favour and no more.
B      22. Article 249 similarly empowers the Parliament to legislate
       with respect to a matter in the State List for national interest
       provided the Council of States has declared by a resolution
       supported by not less than two-thirds of the members present
       and voting that it is necessary or expedient in national interest to
       do so. The power is available till such time any resolution remains
C      in force in terms of Article 249(2) and the proviso thereunder.
       23. Article 250 is yet another provision which empowers the
       Parliament to legislate with respect to any matter in the State
       List when there is a proclamation of emergency. In the event of
       an inconsistency between laws made by Parliament under
D      Articles 249 and 250, and laws made by legislature of the States,
       the law made by Parliament shall, to the extent of the
       inconsistency, prevail over the law made by the State in terms of
       Article 251.
      24. The power of Parliament to legislate for two or more States
E     by consent, in regard to matters not otherwise within the power
      of the Parliament is regulated by Article 252, while Article 253
      starting with a non-obstante clause empowers Parliament to make
      any law for the whole country or any part of the territory of India
      for implementing any treaty, agreement or convention with any
F     other country or countries or any decision made at any international
      conference, association or other body.”
      87. Mr. Divan, however, made an earnest endeavour to further
      broaden this concept of ‘limited Government’ by giving an
      altogether different slant. He submitted that there are certain
G     things that the States simply cannot do because the action
      fundamentally alters the relationship between the citizens and the
      State. In this hue, he submitted that it was impermissible for the
      State to undertake the exercise of collection of bio-metric data,
      including fingerprints and storing at a central depository as it puts
      the State in an extremely dominant position in relation to the
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            443
                     [A. K. SIKRI, J.]

      individual citizens. He also submitted that it will put the State in a    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
                                                                                B
      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     C
      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               D
particularly the principle that the concept of ‘limited government’ is
applicable having regard to the fact that the three limbs of the State are
to act within the framework of a written Constitution which assigns
specific powers to each of the wing of the State and this presupposes
that the sovereign power of the Parliament is circumscribed by the              E
provisions of the Constitution and the legislature is supposed to Act within
the boundaries delineated by the Constitution. The constitutionalism,
which is the bedrock of rule of law, is to be necessarily adhered to by the
Parliament. Further, the power of judicial review which is accorded to
the courts can be exercised to strike down any legislation or executive
action if it is unconstitutional.                                               F
       388. When we examine this issue in the context of discussion on
various issues already dealt with, it is difficult to agree with the sweeping
proposition advanced by the petitioners that the Aadhaar project is
destructive of limited government and constitutional trust. These
submissions are premised on the architecture of the Aadhaar being               G
constitutionally intrusive which threatens the autonomy of individuals
and has a tendency of creating a surveillance state. In support, the
petitioners have referred to certain provisions of the Aadhaar Act. Some
provisions which we found offending are struck down, some others
have been read down and some are tweaked with. We feel that the
                                                                                H
444             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     statutory regime that would now govern the citizenry, wards off such a
      danger, if any.
             MONEY BILL
             Is the Aadhaar Act a validly enacted law having been passed
      as a Money Bill?
B            389. Mr. Chidambaram and Mr. Datar had laid attack on the Act
      on the ground that the Bill it could not have been introduced and passed
      by the Parliament as Money Bill. It was argued that the Aadhaar
      (Targeted Delivery of Financial and Other Subsidies, Benefits and
      Services) Bill, 2016 (for short the ‘Bill’) was wrongly certified as Money
C     Bill under Article 110 of the Constitution of India by the Hon’ble Speaker
      of the Lok Sabha, thereby, virtually excluding the Rajya Sabha from the
      legislative process and depriving the Hon’ble President of his power of
      return. This, according to them, is illegal and grossly violates the
      constitutional provisions.
             390. It was submitted that Bills are of three kinds:
D
             (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).
             391. Article 110 reads as under:
E            “Article 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 f
             the following matters, namely:—
             (a) the imposition, abolition, remission, alteration or regulation of
F            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;
G            (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;

H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           445
                     [A. K. SIKRI, J.]

       (e) the declaring of any expenditure to be expenditure charged on       A
       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 audit of the accounts of the Union or of a State; or       B
       (g) any matter incidental to any of the matters specified in sub-
       clauses (a) to (f).
       (2) A Bill shall not be deemed to be a Money Bill by reason only
       that it provides for the imposition of fines or other pecuniary
       penalties, or for the demand or payment of fees for licenses or         C
       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.
       (3) If any question arises whether a Bill is a Money Bill or not, the
       decision of the Speaker of the House of the People thereon shall
       be final.                                                               D
       (4) There shall be endorsed on every Money Bill when it is transmit
       led to the Council of States under article 109, and when it is
       presented to the President for assent under article 111, the
       certificate of the Speaker of the House of the People signed by
       him that it is a Money Bill.”                                           E
       392. It was submitted that a Money Bill may provide for matters
enumerated in Clause (a) to (f) of Article 110. Clause (g) has been
added because it may be necessary to include provisions that are only
“incidental” to any of matters specified in (a) to (f). The learned counsel
pointed out the distinguishing features of a Money Bill are as below:          F
       (i) It shall be introduced only on the recommendation of President
(Article 117(1)).
       (ii) It shall be introduced only in the House of the People (Article
117(1), 109(1)).
       (iii) A Money Bill is transmitted by the Lok Sabha to the Rajya         G
Sabha. Rajya Sabha thereafter may only make recommendations and
return the Bill and not make amendments. The recommendations may
or may not be accepted by the Lok Sabha. If the Money Bill is not
returned within 14 days, it is deemed to have been passed by both the
Houses. (Article 109(2) to Article 109(5)).
                                                                               H
446                SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A            (iv) Upon submission of a Money Bill to the President for his
      assent, the President cannot return the Money Bill with the message
      requesting that the Houses will reconsider the Bill (proviso to Article
      111).
             Hence, it is manifest that a Money Bill that a Money Bill is a
B     special kind of Bill that has the effect of denuding the power of the
      Rajya Sabha of its power to amend the Bill and depriving the President
      of his power to return the bill for reconsideration. On that premise, it
      was argued that the provisions of a Money Bill must be construed 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
C     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
D     interpretation of the word ‘only’, reference was made to the judgment in
      the case of Hari Ram & Ors. v. Babu Gokul Prasad140:
             “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
E                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
F                the form of crop share shall be deemed to hold such land;
                 (ii) any person who cultivates land in partnership with the tenure
                 holder shall not be deemed to hold such land;
                 (iii) any person to whom only the right to cut grass or to graze
                 cattle or to grow singhara (Trapa bispinosa) or to propagate or
G                collect lac is granted in any land shall not be deemed to hold
                 such land for agricultural purposes.”
             A bare perusal of the section indicates that any tenant other than
             occupancy tenant if he held the land for agricultural purposes
             from a tenure holder, then he became ordinary tenant by operation
      140
            (1991) Supp. 2 SCC 608
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                               447
                     [A. K. SIKRI, J.]

          of law. Doubt if any stood removed by the explanation which              A
          clarifies the class of persons who could be deemed to be covered
          under a tenant other than occupancy tenant. Since it has been
          found that the land was let out to appellant not only for the right to
          cut grass, he could not be held to be a person who was not holding
          the land for agricultural purposes. The word ‘only’ in Explanation
                                                                                   B
          (iii) is significant. It postulates that entire land should have been
          used for the purposes enumerated. If part of the land was used
          for cultivation, then the land could not be deemed to have been
          granted for cutting grass only. It has been found that out of 5 and
          odd acres of land, the land under cultivation was 2 acres. Therefore,
          the negative clause in Explanation (iii) did not apply and the           C
          appellant became ordinary tenant under Section 166. In 1959, M.P.
          Land Revenue Code was enacted and Section 185 provided for
          the persons who could be deemed to be occupancy tenants. Its
          relevant part is extracted below:
             “185. Occupancy tenants.— (1) Every person who at the                 D
             coming into force of this Code holds—
             (i) in the Mahakoshal Region—
             (a) ***
             (b) ***                                                               E
             (c) any land as an ordinary tenant as defined in the Madhya
             Pradesh Land Revenue Code, 1954 (2 of 1955);”
      394. The learned counsel also referred to M/s. Saru Smelting
(P) Ltd. v. Commissioner of Sales Tax, Lucknow141:
          “3. The contention of the respondent is that Phosphorous Bronze          F
          is an alloy containing not only the metals mentioned in the aforesaid
          entry but Phosphorous also and as such it is not covered under
          the aforesaid entry. The words “other alloy containing any of these
          metals only” mean that the alloy made of these metals i.e. copper,
          tin, nickel or zinc only and that alone is covered under the said        G
          entry. It was submitted that if any other metal or substance is
          included in such an alloy, the same would not be covered under
          the aforesaid entry.
                    xx                xx                xx
141
      (1993) Supp. 3 SCC 97                                                        H
448            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           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
B
            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
C           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”
D
            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 following
E           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
            the national Loans 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
F           money; the raising or guarantee of any loan or the repayment
            thereof; or subordinate matters incidental to those subjects or any
            of them. For the purposes of this definition the expressions
            ‘taxation’, ‘public money’, and ‘loan’ respectively do not include
            any taxation, money, or loan raised by local authorities or bodies
G           for local purposes, matters which, on the other hand, are included
            within the scope of Commons financial privilege.
            PROCEDURE IN PASSING MONEY BILL
            A ‘Money Bill’ which has been passed by the House of Commons
            and sent up to the House of Lords at least one month before the
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            449
                   [A. K. SIKRI, J.]

   end of the session, but is not passed by the House of Lords without        A
   amendment within one month after it is so sent up, is, unless the
   House of Commons direct to the contrary, to be presented for the
   Royal Assent and becomes an Act of Parliament on the Royal
   Assent being signified to it. A ‘Money Bil’, when it is sent up to
   the House of Lords and when it is presented to Her Majesty,
                                                                              B
   must be endorsed with the Speaker’s certificate that it is such a
   bill. Before giving this certificate the Speaker is directed to consult,
   if practicable, those two members of the Panel of Chairs who are
   appointed for the purpose at the beginning of each session by the
   Committee of Selection.
   When the Speaker has certified a bill to be a ‘Money Bill’ this is         C
   recorded in the Journal; and Section 3 of the Parliament Act 1911
   stipulates that such certificate is conclusive for all purposes and
   may not be questioned in a court of law.
   No serious practical difficulty normally arises in deciding whether
   a particular bill is or is not a ‘Money Bill’; and criticism has seldom    D
   been voiced of the Speaker’s action in giving or withholding a
   certificate. A bill which contains any of the enumerated matters
   and nothing besides is indisputably a ‘Money bill’. If it contains
   any other matters, then, unless these are ‘subordinate matters
   incidental to’ any of the enumerated matters so contained in the           E
   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.”
                                                                              F
   THE PARLIAMENTARY ACT, 1911
   Chapter 13 of the Parliament Act, 1911 wherein Money Bill is
   defined as under:
   “(1) …
                                                                              G
   (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
                                                                              H
450      SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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 subsection the expressions “taxation”, “public
B
      money”, and “loan” respectively do not include any taxation, money,
      or loan raised by local authorities or bodies for local purposes.
      (3) There shall be endorsed on every Money Bill when it is sent
      up to the House of Lords and when it is presented to His Majesty
      for assent the certificate of the Speaker of the House of Commons
C     signed by him that it is a Money Bill. Before giving his certificate,
      the Speaker shall consult, if practicable, two members to be
      appointed from the Chairmen’s Panel at the beginning of each
      Session by the Committee of Selection.”
      RELEVANT EXCERPTS FROM THE CONSTITUTION
D     OF IRELAND
      (1) A Money Bill means a Bill which contains only provisions
      dealing with all or any of the following matters, namely, the
      imposition, repeal, remission, alteration or regulation of taxation;
      the imposition for the payment of debt or other financial purposes
E     of charges on public moneys 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; matters subordinate and incidental
      to these matters or any of them.
F     (2) In this definition 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.
      RELEVANT EXCERPTS FROM KAUL & SHAKDER’S
      “PRACTICE AND PROCEDURE OF PARLIAMENT”,
G     LOK SABHA SECRETARIAT AT INDIA
      Speaker Mavalankar observed as follows:
        “Prima facie, it appears to me that the words of article 110
      (imposition, abolition, remission, alteration, regulation of any tax)
      are sufficiently wide to make the Consolidated Bill a Money Bill.
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                451
                    [A. K. SIKRI, J.]

      A question may arise as to what is the exact significance or scope           A
      of the word ‘only’ and whether and how far that word goes to
      modify or control the wide and general words ‘imposition, abolition,
      remission, etc.’.
        I think, prima facie, that the word ‘only’ is not restrictive of the
      scope of the general terms. If a Bill substantially deals with the           B
      imposition, abolition, etc., of a tax, then the mere fact of the inclusion
      in the Bill of other provisions which may be necessary for the
      administration of that tax or, I may say, necessary for the
      achievement of the objective of the particular Bill, cannot take
      away the Bill from the category of Money Bills. One has to look
      to the objective of the bill. Therefore, if the substantial provisions       C
      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                  D
      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.
                                                                                   E
        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          F
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 as to whether decision of the Speaker was constitutionally correct.
In respect of Bill in question, it was argued that though Section 7 states
that subsidies, benefits and services shall be provided from Consolidated
Fund of India which was an attempt to give it a colour of Money Bill,              G
some of the 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. Therefore, some provisions which were other than
those covered by Money Bill and, therefore, introduction of the Bill as            H
452             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     Money Bill was clearly inappropriate. It was also argued that, in this
      scenario, entire Act was bound to fail as there is no provision for severing
      clauses in Indian Constitution, unlike Section 55 of the Australian
      Constitution. Insofar as justiciability of the Speaker’s decision is
      concerned, following judgments were referred to:
B            (i) Sub-Committee on Judicial Accountability v. Union of India
                 & Ors.142
             (ii) S.R. Bommai & Ors. v. Union of India & Ors.143
             (iii) Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Ors.144

C            (iv) Ramdas Athawale v. Union of India & Ors.145
             (v) Kihoto Hollohan v. Zachillhu & Ors.146
             397. It was emphasised that the creation and composition of the
      Rajya Sabha (Upper House) is an indicator of, and is essential to,
      constitutional federalism. It is a part of basic structure of the Constitution
D     as held in Kuldip Nayar & Ors. v. Union of India & Ors. 147 .
      Therefore, Rajya Sabha could not have been by-passed while passing
      the legislation in question and doing away with this process and also
      right of the President to return the Bill has rendered the statute
      unconstitutional.
E            398. The learned Attorney General as well as Mr. Dwivedi and
      some other counsel appearing for respondents refuted the aforesaid
      submissions in a strongest manner possible. It was argued that the Bill
      was rightly characterised as a Money Bill and introduced under Article
      110 of the Constitution. According to them, the heart of the Aadhaar
      Act is Section 7. It is not the creation of Aadhaar number per se which
F
      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. A conjoint reading of the preamble to the Act along with
      Section 7 clearly discloses the legislative intent and the object of the Act,
G     which is to ensure that subsidy, benefit or service for which expenditure
      142
          (1991) 4 SCC 699
      143
          (1994) 3 SCC 1
      144
          (2007) 3 SCC 184
      145
          (2010) 4 SCC 1
      146
          (1992) Supp. 2 SCC 651
      147
          (2006) 7 SCC 1
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              453
                     [A. K. SIKRI, J.]

is incurred from or the receipt therefrom forms part of, the Consolidated         A
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.
                                                                                  B
Saeed Siddiqui v. State of Uttar Pradesh & Anr.148 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           C
         of 2012 (Writ-C 24905 of 2012), order dated 27-8-2012 (All)]
         whereby the High Court, while allowing the amendment application
         to the writ petition and holding the writ petition to be maintainable,
         directed to list the petition on 27-9-2012 for hearing on merits. By
         way of the said amendment application, the writ petitioner sought        D
         to add two grounds in the writ petition viz. the Amendment Act is
         violative of the provisions of the Constitution of India and the
         same was wrongly introduced as a Money Bill in clear disregard
         to the provisions of Article 199 of the Constitution of India.
         Accordingly, it was prayed to issue a writ, order or direction in the
         nature of mandamus declaring the Amendment Act as ultra vires            E
         the provisions of the Constitution of India.
                   xx                xx                xx


         12. It was further submitted by Mr Venugopal that the Amendment          F
         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 paper in the eye of the law. The Bill in question was
         presented as a Money Bill when, on the face of it, it could never
         be called as a Money Bill as defined in Articles 199(1) and 199(2)       G
         of the Constitution of India. Since the procedure for an ordinary
         Bill was not followed and the assent of the Governor was obtained
         to an inchoate and incomplete Bill which had not even gone through
         the mandatory requirements under the Constitution of India, the
148
      (2014) 11 SCC 415
                                                                                  H
454      SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     entire action was unconstitutional and violative of Article 200 of
      the Constitution of India.
                xx               xx                xx
      31. The main apprehension of the petitioner is that the Bill that
      led to the enactment of the Amendment Act was passed as a
B     Money Bill in violation of Articles 197 and 198 of the Constitution
      of India which should have been passed by both the Houses viz.
      U.P. Legislative Assembly and U.P. Legislative Council and was
      wrongly passed only by the U.P. Legislative Assembly. During
      the course of hearing, Mr Desai, learned Senior Counsel appearing
C     for the State of U.P., placed the original records pertaining to the
      proceedings of the Legislative Assembly, decision of the Speaker
      as well as the Governor, which we are going to discuss in the
      latter part of our judgment.
                xx               xx                xx
D     34. The above provisions make it clear that the finality of the
      decision of the Speaker and the proceedings of the State Legislature
      being important privilege of the State Legislature viz. freedom of
      speech, debate and proceedings are not to be inquired by the courts.
      The “proceeding of the legislature” includes everything said or
E     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
F     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
G     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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             455
                     [A. K. SIKRI, J.]

          be questioned by virtue of Article 212. We are conscious of the        A
          fact that in the decision of this Court in Raja Ram Pal v. Lok
          Sabha [(2007) 3 SCC 184] , 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.
          36. Even if it is established that there was some infirmity in the     B
          procedure in the enactment of the Amendment Act, in terms of
          Article 255 of the Constitution the matters of procedure do not
          render invalid an Act to which assent has been given by the
          President or the Governor, as the case may be.
                    xx               xx                xx                        C
          43. As discussed above, 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.
          Further, as noted earlier, Article 252 also shows that under the       D
          Constitution the matters of procedure do not render invalid an Act
          to which assent has been given by the President or the Governor,
          as the case may be. Inasmuch as the Bill in question was a Money
          Bill, the contrary contention by the petitioner against the passing
          of the said Bill by the Legislative Assembly alone is unacceptable.”
                                                                                 E
       399. It was submitted that the challenge on identical grounds was,
thus, repelled in the aforesaid case wherein validity of legislative
enactment of a State in question, on the same ground, namely, it could
not called Money Bill as defined in Article 199 of the Constitution, which
was pari materia with Article 110 of the Constitution qua the Parliament.
Judgment in the case of Yogendra Kumar Jaiswal & Ors. v. State of                F
Bihar & Ors.149 was also referred to wherein the Court was concerned
with Orissa Special Courts Act, 2006 which was also passed as Money
Bill and was challenged as violative of Article 199 of the Constitution. It
was argued that the Court held in this case that decision of the Speaker
that the Bill in question is a Money Bill is final and such a decision           G
cannot be disputed nor can the procedure of the state legislature can be
questioned by virtue of Article 212 of the Constitution. The learned
Attorney General specifically read out the following portion from the
said judgment:
149
      (2016) 3 SCC 183
                                                                                 H
456                 SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A          “42. In this regard, we may profitably refer to the authority in
           Mohd. Saeed Siddiqui v. State of U.P. [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
B
           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
C          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
D
           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
E          introduction of a Bill, as has been held in Mohd. Saeed Siddiqui
           [Mohd. Saeed Siddiqui v. State of U.P., (2014) 11 SCC 415] ,
           comes within the concept of “irregularity” and it does come within
           the realm of substantiality. What has been held in Special
           Reference No. 1 of 1964 [Powers, Privileges and Immunities
           of State Legislatures, In re, Special Reference No. 1 of 1964,
F
           AIR 1965 SC 745] 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 [Mohd. Saeed
           Siddiqui v. State of U.P., (2014) 11 SCC 415] and hence, we
G          unhesitatingly hold that there is no merit in the submission so
           assiduously urged by the learned counsel for the appellants.”
           400. Reliance was also placed on three judgments of Constitution
      Bench of this Court150. The learned Attorney General also submitted
      150
            Mangalore Ganesh Beedi Works v. State of Mysore & Anr., 1963 Supp (1) SCR 275;
            Ramdas Athawale v. Union of India & Ors., (2010) 4 SCC 1, and; M.S.M. Sharma v.
H           Dr. Shree Krishna Sinha & Ors., AIR 1960 SC 1186
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           457
                     [A. K. SIKRI, J.]

that even if it is presumed that there is illegality of procedure in the       A
conduct of business in the Parliament, such parliamentary proceedings
were immune from challenge. Attention of the Court was also drawn to
Article 122, which prohibits any proceedings of Parliament being called
in question on the ground of “any alleged irregularity of procedure”.
It was submitted that the decision and certification of the Speaker being
                                                                               B
a matter of procedure is included in the Chapter under the heads
“Legislative Procedure” being Articles 107 to 111, “Procedure in Financial
Matters” being Articles 112 to 117 and “Procedure Generally” being
Article 118 to 122 placing beyond doubt that separation of powers is
embedded in these provisions clearly excluding judicial review in matters
of procedure. Submission was that if this is clearly a Money Bill, being       C
placed beyond challenge in a Court of Law, then to term it as a Financial
Bill as contended by the petitioners would be wholly unjustified. Dilating
the aforesaid proposition, it was pointed out that in the Draft Constitution
prepared by the drafting committee, Article 101 provided for immunity
of Parliamentary proceedings from judicial intervention on ‘alleged
                                                                               D
irregularity of procedure’. This article finally got renumbered as Article
122 in the Constitution of India. During the Constituent Assembly debates,
Shri H.V. Kamath suggested an amendment to draft Article 101 to clarify
that the validity of any Parliamentary proceedings shall not be called in
question in any court. Accordingly, he suggested that the words ‘called
in question’ be replaced with ‘called in question in any court’. Refuting      E
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         F
      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             G
      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 & Ors. v. State of Bihar &
                                                                               H
458             SUPREME COURT REPORTS                                [2018] 8 S.C.R.


A     Ors.151 was also taken, which has been approved by the Constitution
      Bench judgment of this Court in State of Punjab v. Sat Pal Dang &
      Ors.152. It was also argued that the legal position was similar in other
      Parliamentary democracies like Australia and Canada.
             402. In any case, argued the learned Attorney General and Mr.
B     Dwivedi, the Bill was rightly introduced as Money Bill as it merited such
      a description in law as well. To buttress this submission, doctrine of pith
      and substance was invoked as a guiding test. It was argued that Section
      7 which was the heart and soul of the Aadhaar Act fulfilled this
      requirement as the subsidies, benefits and services, the expenditure of
      which is incurred from the Consolidated Fund of India. Therefore,
C     conditions laid down in Article 110 were fully satisfied. Following
      judgments153 explaining the doctrine of pith and substance were pressed
      into substance. It was submitted that undoubtedly in pith and substance,
      the object of the Aadhaar Act is to identify the correct beneficiaries and
      ensure the “targeted delivery of subsidies, benefits and services”, the
D     expenditure for which is incurred from the Consolidated Fund of India.
      The creation of the Aadhaar number and authentication facility are in
      furtherance of the object of the Aadhaar Act, which is permissible under
      Article 110(g). It was also argued that Section 57, which has been
      attacked as being untraceable to any of the sub-clauses of (a) to (f) of
      Article 110 cannot be looked at in isolation. This Bill in its pith and
E     substance should pass the test of being a Money Bill and not isolated
      provisions. On the contrary, Section 57 of the Act is also incidental to
      the object of the Act and creates a limitation upon use of Aadhaar by
      private parties wherein even though nothing prevents them from using
      Aadhaar for other purposes, the same has been subjected to the
F     procedure and obligations of Section 8, which requires, inter alia, informed
      consent of the Aadhaar number holder, purpose limitation, i.e. the identity
      information will be used only for submission to CIDR for authentication
      and the private entity must provide alternatives to submission of such
      identity information, which, in other words, means that private parties
      cannot insist upon Aadhaar and make Aadhaar mandatory, unless required
G     by law. Therefore, Section 57 is a limitation imposed under the Aadhaar
      151
          AIR 1963 Pat 16
      152
          (1969) 1 SCR 478
      153
          A.S. Krishna v. State of Madras, (1957) SCR 399; Union of India & Ors. v. Shah
          Goverdhan L. Kabra Teachers’ College, (2002) 8 SCC 228, and; P.N. Krishna Lal &
          Ors. v. Government of Kerala & Anr., 1995 Supp (2) SCC 187
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          459
                    [A. K. SIKRI, J.]

Act on the use of Aadhaar number by private parties which is purely          A
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        B
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             C
      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 Lords in the        D
      British Parliament, but was totally different from the latter with
      respect to its composition and powers.
      75. Since then, many nations have adopted a bicameral form of
      Central Legislature, even though some of them are not federations.
      On account of colonial rule, these British institutions of             E
      parliamentary governance were also embodied in the British North
      America Act, 1867 by which the Dominion of Canada came into
      existence and the Constitution of India, 1950. In Canada,
      Parliament consists of the House of Commons and the Senate
      (the Upper House). Likewise, the Parliament of the Union of            F
      India consists of the Lok Sabha (House of the People) and the
      Rajya Sabha (Council of States, which is the Upper House). In
      terms of their functions as agencies of representative democracies,
      the Lower Houses in the legislatures of India, USA and Canada,
      namely, the Lok Sabha, the House of Representatives and the
      House of Commons broadly follow the same system of                     G
      composition. As of now, Members of the Lower Houses are elected
      from pre-designated constituencies through universal adult
      suffrage. The demarcation of these constituencies is in accordance
      with distribution of population, so as to accord equity in the value
      of each vote throughout the territory of the country. However,         H
460      SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     with the existence of constituent States of varying areas and
      populations, the representation accorded to these States in the
      Lower House becomes highly unequal. Hence, the composition
      of the Upper House has become an indicator of federalism, so as
      to more adequately reflect the interests of the constituent States
      and ensure a mechanism of checks and balances against the
B
      exercise of power by Central authorities that might affect the
      interests of the constituent States.
                xx                xx               xx
      79. The genesis of the Indian Rajya Sabha on the other hand
C     benefited from the constitutional history of several nations which
      allowed the Constituent Assembly to examine the federal functions
      of an Upper House. However, “bicameralism” had been
      introduced to the provincial legislatures under the British rule in
      1921. The Government of India Act, 1935 also created an Upper
      House in the federal legislature, whose members were to be
D     elected by the members of provincial legislatures and in case of
      Princely States to be nominated by the rulers of such territories.
      However, on account of the realities faced by the young Indian
      Union, a Council of States (the Rajya Sabha) in the Union
      Parliament was seen as an essential requirement for a federal
E     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
F     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
G     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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            461
                     [A. K. SIKRI, J.]

      representation to the larger States so that the will of the               A
      representatives of a minority of the electorate does not prevail
      over that of a majority.
      80. In India, Article 80 of the Constitution of India prescribes the
      composition of the Rajya Sabha. The maximum strength of the
      House is 250 members, out of which up to 238 members are the              B
      elected representatives of the States and the Union Territories
      [Article 80(1)(b)], and 12 members are nominated by the President
      as representatives of non-political fields like literature, science,
      art and social services [Articles 80(1)(a) and 80(3)]. The members
      from the States are elected by the elected members of the
      respective State Legislative Assemblies as per the system of              C
      proportional representation by means of the single transferable
      vote [Article 80(4)]. The manner of election for representatives
      from the Union Territories has been left to prescription by
      Parliament [Article 80(5)]. The allocation of seats for the various
      States and Union Territories of the Indian Union is enumerated in         D
      the Fourth Schedule to the Constitution, which is read with Articles
      4(1) and 80(2). This allocation has obviously varied with the
      admission and reorganisation of States.”
       404. The Rajya Sabha, therefore, becomes an important institution
signifying constitutional fedaralism. It is precisely for this reason that to   E
enact any statute, the Bill has to be passed by both the Houses, namely,
Lok Sabha as well as Rajya Sabha. It is the constitutional mandate. The
only exception to the aforesaid Parliamentary norm is Article 110 of the
Constitution of India. Having regard to this overall scheme of
bicameralism enshrined in our Constitution, strict interpretation has to be
accorded to Article 110. Keeping in view these principles, we have              F
considered the arguments advanced by both the sides.
       405. We would also like to observe at this stage that insofar as
submission of the respondents about the justiciability of the decision of
the Speaker of the Lok Sabha is concerned, we are unable to subscribe
to such a contention. Judicial review would be admissible under certain         G
circumstances having regard to the law laid down by this Court in various
judgments which have been cited by Mr. P. Chidambaran, learned senior
counsel appearing for the petitioners, and taken note of in paragraph 396.

                                                                                H
462             SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A            406. From the submissions of the learned counsel for the parties
      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
B
      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
C     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
D
      of persons, for whom they are actually meant. Sections 2(f), (w) and
      (x) of the Aadhaar Act define benefit, service and subsidy respectively.
      These provisions read as under:
             “2(f) “benefit” means any advantage, gift, reward, relief, or
             payment, in cash or kind, provided to an individual or a group of
E            individuals and includes such other benefits as may be notified by
             the Central Government;
             2(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
F            the Central Government;
             2(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.”
G
             407. As all these three kinds of welfare measures are sought to
      be extended to the marginalised section of society, a collective reading
      thereof would show that the purpose is to expand the coverage of all
      kinds of aid, support, grant, advantage, relief provisions, facility, utility or
      assistance which may be extended with the support of the Consolidated
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            463
                     [A. K. SIKRI, J.]

Fund of India with the objective of targeted delivery. It is also clear that    A
various schemes which can be contemplated by the aforesaid provisions,
relate to vulnerable and weaker section of the society. Whether the
social justice scheme would involve a subsidy or a benefit or a service is
merely a matter of the nature and extent of assistance and would depend
upon the economic capacity of the State. Even where the state subsidizes
                                                                                B
in part, whether in cash or kind, the objective of emancipation of the
poor remains the goal.
       408. The respondents are right in their submission that the
expression subsidy, benefit or service ought to be understood in the context
of targeted delivery to poorer and weaker sections of society. Its
connotation ought not to be determined in the abstract. For as an               C
abstraction one can visualize a subsidy being extended by Parliament to
the King; by Government to the Corporations or Banks; etc. The nature
of subsidy or benefit would not be the same when extended to the poor
and downtrodden for producing those conditions without which they
cannot live a life with dignity. That is the main function behind the           D
Aadhaar Act and for this purpose, enrolment for Aadhaar number is
prescribed 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            E
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        F
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    G
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 above, under Section 3 of the
Aadhaar Act, Aadhaar number is to be issued and authentication is
performed under Section 8 of the Aadhaar Act. Sub-section (2) stipulates
                                                                                H
464            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     certain specified powers and functions which the Authority may perform
      and sub-section (h) thereof reads as under:
            “23(2)(h) 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
B           used.”
            410. This provision, thus, enables the Authority to specify the
      manner of use of Aadhaar with specific purpose in mind, namely, for
      providing or availing of various subsidies, benefits and services. These
      are relatable to Section 7. However, it uses the expression ‘other
C     purposes’ as well. The expression ‘other purposes’ can be read ejusdem
      generis which would have its relation to subsidies, benefits and services
      as mentioned in Section 7 and it can be confined only to that purpose i.e.
      scheme of targeted delivery for giving any grant, relief etc. when it is
      chargeable to Consolidated Fund of India. Therefore, this provision,
      according to us, can be read as incidental to the main provision and
D     would be covered by Article 110(g) of the Constitution. Section 54
      confers power upon the Authority to make regulations consistent with
      the Act and rules made thereunder, for carrying out the provisions of the
      Act. Clause (m) of sub-section (2) of Section 54 relates to Section
      23(2)(h) as can be seen from its language.
E           “54(2)(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.”
             411. The interpretation which we have given to Section 23(2)(h)
F     would apply here as well and, therefore, we do not find any problem
      with this provision also. Coming to Section 57 of the Aadhaar Act, it
      mentions that Aadhaar Act would not prevent use of Aadhaar number
      for other purposes under the law. It is only an enabling provision as it
      permits the use of Aadhaar number for other purposes as well. This
G     provision is to be viewed in the backdrop that Section 7 is the core
      provision. We have already held that it has substantial nexus with the
      appropriation of funds from the Consolidated Fund of India and is directly
      connected 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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          465
                     [A. K. SIKRI, J.]

it’s own expenses. Respondents have rights remarked that the Authority        A
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
                                                                              B
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       C
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 Authority for
establishing the identity of an individual.
       For all the aforesaid reasons, we are of the opinion that Bill was     D
rightly introduced as Money Bill. Accordingly, it is not necessary for us
to deal with other contentions of the petitioners, namely, whether
certification by the Speaker about the Bill being Money Bill is subject to
judicial review or not, whether a provision which does not relate to Money
Bill is severable or not. We reiterate that main provision is a part of       E
Money Bill and other are only incidental and, therefore, covered by clause
(g) of Article 110 of the Constitution.
      Section 139AA of the Income Tax Act, 1961:
      413. The Division Bench of this Court in Binoy Viswam has already
upheld the validity of Section 139AA of the Income Tax Act, 1961 by           F
repelling the contention predicated on Articles 14 and 19 of the
Constitution of India. No doubt, in the said judgment, the Court held that
insofar as scope of judicial review of legislative act is concerned, it is
available on two grounds, namely:
      (i) The Act is not within the competence of the legislature which       G
passed the law, and/or
      (ii) It is in contravention of any fundamental rights stipulated in
Part III of the Constitution or any other rights/provisions of the
Constitution.
                                                                              H
466             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A            414. We have already acknowledged the existence of third ground
      as pointed out in Shayara Bano case, namely, ‘manifest arbitrariness’.
      An Act which is manifestly arbitrary would be unreasonable and contrary
      to rule of law and, therefore, violative of Article 14 of the Constitution.
      Even when we consider the provisions of Section 139AA of the Income
      Tax Act, 1961 from this point of view, it cannot be said that the provision
B
      suffers from the vice of manifest arbitrariness. On the contrary, in Binoy
      Viswam itself, the benevolent purpose for inserting such a provision as a
      bona fide move has been highlighted. Therefore, the provision needs
      this test as well. In this behalf, the Court observed:
             “101. The varying needs of different classes or sections of people
C            require differential and separate treatment. The legislature is
             required to deal with diverse problems arising out of an infinite
             variety of human relations. It must, therefore, necessarily have
             the power of making laws to attain particular objects and, for that
             purpose, of distinguishing, selecting and classifying persons and
D            things upon which its laws 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.”
E
            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:
F
             “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
G            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.

H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           467
                     [A. K. SIKRI, J.]

      136.3. Section 139-AA of the Act is not discriminatory nor it            A
      offends equality clause enshrined in Article 14 of the Constitution.
      136.4. Section 139-AA is also not violative of Article 19(1)(g) of
      the Constitution insofar as it mandates giving of Aadhaar enrolment
      number for applying for PAN cards, in the income tax returns or
      notified Aadhaar enrolment number to the designated authorities.         B
      Further, the proviso to sub-section (2) thereof has to be read down
      to mean that it would operate only prospectively.
      136.5. The validity of the provision upheld in the aforesaid manner
      is subject to passing the muster of Article 21 of the Constitution,
      which is the issue before the Constitution Bench in Writ Petition        C
      (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 costs.”
       416. The nine Judge Bench has already, since then, answered the         D
reference by holding that right to privacy is a fundamental right. Having
regard to that, validity of Section 139AA of the Act needs to be tested
on this ground.
       417. As already explained above, the Constitution Bench has held
that in K.S. Puttaswamy though privacy is a fundamental right inter            E
alia traceable to the right to liberty enshrined in Article 21 of the
Constitution, it is not an absolute right but subject to limitations. The
Court also laid down the triple test which need to be satisfied for judging
the permissible limits for invasion of privacy while testing the validity of
any legislation. These are:
                                                                               F
      (a) The existence of a law.
      (b) A “legitimate State interest”; and
      (c) Such law should pass the “test of proportionality”.
       418. In the present case, there is no dispute that first requirement
stands satisfied as Section 139AA is a statutory provision and, therefore,     G
there is a backing of law. Mr. Tushar Mehta, learned ASG had argued
that not only other two requirements are also satisfied, rather these have
been specifically dealt with by the Division Bench in Binoy Viswam
inasmuch as these aspects were eluded to, consider, examined and the
Court recorded its findings on these aspects. We find force in this            H
468            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     submission of Mr. Mehta. Insofar as requirement of ‘legitimate State
      interest’ is concerned, he pointed out that though Nariman, J. provided
      for a lenient test, namely, ‘larger public 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:
B
            “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
C     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
D     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”
E     as well as the “larger public interest” has now introduced Section 139AA
      which is only an extension of Section 139A which requires linking of
      PAN number with Aadhaar number which is issued under the Act for
      the purpose of eliminating duplicate PANs from the system with the
      help of a robust technology solution. Therefore, those who have PAN
F     number and have already provided the information required to get PAN
      number cannot claim to have any legitimate expectation of withholding
      any data required for Aadhaar under the ground of “privacy”.
             421. The respondents have demonstrated with empirical data, in
      the common additional affidavit of respondent Nos. 1 and 3 the existence
G     of the “legitimate State interest” and “larger public interest”. Being a
      unique identifier, the problem of bogus or duplicate PANs can be dealt
      with in a more systematic and full-proof manner (though, in the context
      of Articles 14 and 19 of the Constitution, but at the same time, relevant
      from the perspective of legitimate State interest also). Discussion on
      this aspect, in Binoy Viswam, proceeds as under:
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                        469
                   [A. K. SIKRI, J.]

   “60.2. PAN is the key or identifier of all computerised records        A
   relating to the taxpayer. The requirement for obtaining of PAN is
   mandated through Section 139-A of the Act. The procedure for
   application for PAN is prescribed in Rule 114 of the Rules. The
   forms prescribed for PAN application are Forms 49-A and 49-
   AA for Indian and foreign citizens/entities. Quoting of PAN has
                                                                          B
   been mandated for certain transactions above specified threshold
   value in Rule 114-B of the Rules.
   60.3. For achieving the objective of one PAN to one assessee, it
   is required to maintain uniqueness of PAN. The uniqueness of
   PAN is achieved by conducting a de-duplication check on all
   already existing allotted PAN against the data furnished by new        C
   applicant. Under the existing system of PAN only demographic
   data is captured. De-duplication process is carried out using a
   phonetic algorithm whereby a Phonetic PAN (PPAN) is created
   in respect of each applicant using the data of applicant’s name,
   father’s name, date of birth, gender and status. By comparison of      D
   newly generated PPAN with existing set of PPANs of all
   assessees duplicate check is carried out and it is ensured that
   same person does not acquire multiple PANs or one PAN is not
   allotted to multiple persons. Due to prevalence of common names
   and large number of PAN holders, the demographic way of de-
   duplication is not foolproof. Many instances are found where           E
   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        F
   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       G
   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.

                                                                          H
470      SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     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 to
      weed out any undetected duplicate PANs. It will also facilitate
B
      resolution of cases of one PAN allotted to multiple persons.
                xx               xx                xx
      104. Insofar as the impugned provision is concerned, Mr Datar
      had conceded that first test that of reasonable classification had
C     been satisfied as he conceded that individual assessees form a
      separate class and the impugned provision which targeted only
      individual assessees would not be discriminatory on this ground.
      His whole emphasis was that Section 139-AA of the Act did not
      satisfy the second limb of the twin tests of classification as,
      according to him, this provision had no rational nexus with the
D     object sought to be achieved. In this behalf, his submission was
      that if the purpose of the provision was to curb circulation of
      black money, such an object was not achievable by seeding PAN
      with Aadhaar inasmuch as Aadhaar is only for individuals. His
      submission was that it is only the individuals who are responsible
E     for generating black money or money laundering. This was the
      basis for Mr Datar’s submission. We find it somewhat difficult to
      accept such a submission.
      105. Unearthing black money or checking money laundering is to
      be achieved to whatever extent possible. Various measures can
F     be taken in this behalf. If one of the measures is introduction of
      Aadhaar into the tax regime, it cannot be denounced only because
      of the reason that the purpose would not be achieved fully. Such
      kind of menace, which is deep-rooted, needs to be tackled by
      taking multiple actions and those actions may be initiated at the
      same time. It is the combined effect of these actions which may
G     yield results and each individual action considered in isolation may
      not be sufficient. Therefore, rationality of a particular measure
      cannot be challenged on the ground that it has no nexus with the
      objective to be achieved. Of course, there is a definite objective.
      For this purpose alone, individual measure cannot be ridiculed.
H     We have already taken note of the recommendations of SIT on
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                         471
                   [A. K. SIKRI, J.]

   black money headed by Justice M.B. Shah. We have also                   A
   reproduced the measures suggested by the Committee headed by
   Chairman, CBDT on “Measures to Tackle Black Money in India
   and Abroad”. They have, in no uncertain terms, suggested that
   one singular proof of identity of a person for entering into finance/
   business transactions, etc. may go a long way in curbing this foul
                                                                           B
   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           C
   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
                                                                           D
   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         E
   biometrics will not allow that and, therefore, it may check the
   growth of shell companies as well.
             xx                xx               xx
   127. It would be apposite to quote the following discussion by the
   Comptroller and Auditor General in his report for the year 2011:        F

      “Widening of Tax Base
      The assessee base grew over the last five years from 297.9
      lakh taxpayers in 2005-06 to 340.9 lakh taxpayers in 2009-10
      at the rate of 14.4 per cent.                                        G
      The Department has different mechanisms available to enhance
      the assessee base which include inspection and survey,
      information sharing with other tax departments and third-party
      information available in annual information returns. Automation
      also facilitates greater crosslinking. Most of these mechanisms
                                                                           H
472      SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A        are available at the level of assessing officers. The Department
         needs to holistically harness these mechanisms at macro level
         to analyse the gaps in the assessee base. Permanent Account
         Numbers (PANs) issued up to March 2009 and March 2010
         were 807.9 lakhs and 958 lakhs respectively. The returns filled
         in 2008-09 and 2009-10 were 326.5 lakhs and 340.9 lakhs
B
         respectively. The gap between PANs and the number of returns
         filed was 617.1 lakhs in 2009-10. The Board needs to identify
         the reasons for the gap and use this information for appropriately
         enhancing the assessee base. The gap may be due to issuance
         of duplicate PAN cards and death of some PAN card
C        holders. The Department needs to put in place appropriate
         controls to weed out the duplicate PANs and also update
         the position in respect of deceased assessee. It is significant
         to note that the number of PAN card holders has increased
         by 117.7 per cent between 2005-06 to 2009-10 whereas
         the number of returns filed in the same period has increased
D
         by 14.4 per cent only.
         The total direct tax collection has increased by 128.8 per cent
         during the period 2005-06 to 2009-10. The increase in the tax
         collection was around nine times as compared to increase in
         the assessee base. It should be the constant endeavour of the
E        Department to ensure that the entire assessee base, once
         correctly identified is duly meeting the entire tax liability.
         However, no assurance could be obtained that the tax liability
         on the assessee is being assessed and collected properly. This
         comment is corroborated in Para 2.4.1 of Chapter 2 of this
F        report where we have mentioned about our detection of
         undercharge of tax amounting to Rs 12,842.7 crores in 19,230
         cases audited during 2008-09. However, given the fact that
         ours is a test 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.”
G
                                                     (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
H     as tax non-compliant, with the following figures:
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                        473
                   [A. K. SIKRI, J.]

      “India’s tax to GDP ratio is very low, and the proportion of        A
      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
                                                                          B
      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         C
      returns for Assessment Year 2016-17. Of the 5.97 lakh
      companies which have filed their returns for Assessment Year
      2016-17 so far, as many as 2.76 lakh companies have shown
      losses or zero income. 2.85 lakh companies have shown profit
      before tax of less than Rs 1 crore. 28,667 companies have
                                                                          D
      shown profit between Rs 1 crore to Rs 10 crores, and only
      7781 companies have profit before tax of more than Rs 10
      crores. Among 3.7 crore individuals who filed the tax returns
      in 2015-16, 99 lakhs show income below the exemption limit of
      Rs 2.5 lakh p.a. 1.95 crores show income between Rs 2.5 to
      Rs 5 lakhs, 52 lakhs show income between Rs 5 to Rs 10 lakhs        E
      and only 24 lakh people show income above Rs 10 lakhs. Of
      the 76 lakh individual assessees who declare income above Rs
      5 lakhs, 56 lakhs are in the salaried class. The number of people
      showing income more than 50 lakhs in the entire country is
      only 1.72 lakhs. We can contrast this with the fact that in the
                                                                          F
      last five years, more than 1.25 crore cars have been sold, and
      number of Indian citizens who flew abroad, either for business
      or tourism, is 2 crores in the year 2015. From all these figures
      we can conclude that we are largely a tax non-compliant
      society. The predominance of the cash in the economy makes
      it possible for the people to evade their taxes. When too many      G
      people evade the taxes, the burden of their share falls on those
      who are honest and compliant.”
   129. The respondents have also claimed that linking of Aadhaar
   with PAN is consistent with India’s international obligations and
                                                                          H
474            SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A           goals. In this behalf, it is pointed out that India has signed the
            Inter-Governmental Agreement (IGA) with USA on 9-7-2015, for
            Improving International Tax Compliance and implementing the
            Foreign Account Tax Compliance Act (FATCA). India has also
            signed a multilateral agreement on 3-6-2015, to automatically
            exchange information based on Article 6 of the Convention on
B
            Mutual Administrative Assistance in Tax Matters under the
            Common Reporting Scheme (CRS), formally referred to as the
            Standard for Automatic Exchange of Financial Account
            Information (AEoI). As part of India’s commitment under FATCA
            and CRS, financial sector entities capture the details about the
C           customers using the PAN. In case the PAN or submitted details
            are found to be incorrect or fictitious, it will create major
            embarrassment for the country. Under Non-filers Monitoring
            System (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,
D
            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
E           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
F
            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
G     proportionality test stood applied with. Following discussion in the said
      judgment would amply demonstrate this proposition:
            “65. While monitoring the PILs relating to night shelters for the
            homeless and the right to food through the public distribution
            system, this Court has lauded and complimented the efforts of the
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           475
                   [A. K. SIKRI, J.]

   State Governments for inter alia carrying out biometric                   A
   identification of the head of family of each household to eliminate
   fictitious, bogus and ineligible BPL/AAY household cards.
             xx                xx                 xx
   125.2. Menace of corruption and black money has reached
   alarming proportion in this country. It is eating into the economic       B
   progress which the country is otherwise achieving. It is not
   necessary to go into the various reasons for this menace. However,
   it would be pertinent to comment that even as per the observations
   of the Special Investigation Team (SIT) on black money headed
   by Justice M.B. Shah, one of the reasons is that persons have the         C
   option to quote their PAN or UID or passport number or driving
   licence or any other proof of identity while entering into financial/
   business transactions. Because of this multiple methods of giving
   proofs of identity, there is no mechanism/system at present to
   collect the data available with each of the independent proofs of
   ID. For this reason, even SIT suggested that these databases be           D
   interconnected. To the same effect is the recommendation of the
   Committee headed by Chairman, CBDT on measures to tackle
   black money in India and abroad which also discusses the problem
   of money laundering being done to evade taxes under the garb of
   shell companies by the persons who hold multiple bogus PAN                E
   numbers under different names or variations of their names. That
   can be possible if one uniform proof of identity, namely, UID is
   adopted. It may go a long way to check and minimise the said
   malaise.
   125.3. Thirdly, Aadhaar or UID, which has come to be known as             F
   the most advanced and sophisticated infrastructure, may facilitate
   law-enforcement agencies to take care of problem 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   G
   Aadhaar movement and encourage the people of this country to
   enrol themselves under the Aadhaar Scheme.
   126. Whether such a scheme should remain voluntary or it can
   be made mandatory imposing compulsiveness on the people to be
                                                                             H
476            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           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
B
            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
C           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 PAN to one person can
D
            be ensured by adopting Aadhaar for allotment of PAN to
            individuals. As of today, that is the only method available i.e. by
            seeding of existing PAN with Aadhaar. It is perceived as the best
            method, and the only robust method of de-duplication of PAN
            database. It is claimed by the respondents that the instance of
E           duplicate Aadhaar is almost non-existent. It is also claimed that
            seeding of PAN with Aadhaar may contribute to widening of the
            tax case as well, by checking the tax evasions and bringing into
            tax hold those persons who are liable to pay tax but deliberately
            avoid doing so.”
F            423. It has been stated by the respondents, on affidavit, that
      analysis of Form 61/60 data using PAN Aadhaar linkage shows that a
      large number of PAN holders do not quote their PAN in the prescribed
      transactions to prevent linking of the transactions to the PAN. The
      analysis was performed by matching the Aadhaar number and person
      name reported in Form 61 (which was possible only due to linking of
G     financial transactions/accounts with Aadhaar) with the Aadhaar and name
      of the entity available in the ITD PAN database (possible due to linking
      of PAN with Aadhaar). This analysis identified 1.65 crore non-PAN
      transactions reported through Form 61 (relating to FY 2016-17 and FY
      2017-18) where PAN of the transacting party was present in the PAN
H     database and was not mentioned filing a wrong form deliberately. These
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           477
                    [A. K. SIKRI, J.]

transactions totalled to around Rs. 33,000 crore (based on transaction        A
amount reported). This is the amount of undisclosed high value
transaction which would have gone undetected had it not been for Aadhaar
linkage. Similar matching has also helped populating PAN in 1.12 lakh
non-PAN transactions reported under Statement of Financial Transactions
(SFT). Majority of the non-PAN transactions reported are around
                                                                              B
Deposit in Cash, Investment in time deposit, Sale of immovable property,
Purchase of immovable property and Opening an account (other than
savings and time deposit). Thus, linking of PAN with Aadhaar will
significantly enhance legitimate collection of country’s revenue.
       424. Taking into account the aforesaid consideration as well as
other factors mentioned above, we feel that there is a justifiable reason     C
with the State for collection and storage of data in the form of Aadhaar
and linking it with PAN insofar as Section 139AA of the Income Tax
Act is 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      D
      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         E
      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      F
      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 investigation of crime      G
      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.”
                                                                              H
478                  SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A           425. Following passages from Subramanian Swamy v. Union of
      India, Ministry of Law & Ors.154 may also be relevant in this behalf
      and the same are reproduced below:
                “122. In State of Madras v. V.G. Row, the Court has ruled that
                the test of reasonableness, wherever prescribed, should be applied
B               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
C               enter into the judicial verdict.
                xx                 xx                xx
                130. The principles as regards reasonable restriction as has been
                stated by this Court from time to time are that the restriction should
D               not be excessive and in public interest. The legislation should not
                invade the rights and should not smack of arbitrariness. The test
                of reasonableness cannot be determined by laying down any
                abstract standard or general pattern. It would depend upon the
                nature of the right which has been infringed or sought to be
                infringed. The ultimate “impact”, that is, effect on the right has to
E               be determined. The “impact doctrine” or the principle of “inevitable
                effect” or “inevitable consequence” stands in contradistinction to
                abuse or misuse of a legislation or a statutory provision depending
                upon the circumstances of the case. The prevailing conditions of
                the time and the principles of proportionality of restraint are to be
F               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
G               society.
                          xx                xx                xx
                194. Needless to emphasise that when a law limits a constitutional
                right which many laws do, such limitation is constitutional if it is
      154
H           (2016) 7 SCC 221
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                          479
                     [A. K. SIKRI, J.]

      proportional. The law imposing restriction is proportional if it is     A
      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
                                                                              B
      the objective which the legislation seeks to achieve, and must not
      be in excess of that objective (see P.P. Enterprisesv. 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.          C
      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,         D
contained in K.S. Puttaswamy.
      Prevention of Money Laundering Rules:
      426. The petitioners have challenged amendment to Rule 9 of the
Prevention of Money Laundering (Maintenance of Records) Rules, 2005,
(Rules, 2005) which was amended by Prevention of Money Laundering             E
(Maintenance of Records) Seventh Amendment Rules, 2017. Rule 9 of
the aforesaid Rules is amended by Second Amendment Rules, 2017
whereby following additions are made. The amendment reads as under:
      “(b) in rule 9, for sub-rule (4) to sub-rule (9), the following sub-
      rules shall be substituted, namely:-
                                                                              F
      (4) Where the client is an individual, who is eligible to be enrolled
      for an Aadhaar number, he shall for the purpose of sub-rule (1)
      submit to the reporting entity,-
      (a) the Aadhaar number issued by the Unique Identification
      Authority of India; and
                                                                              G
      (b) the Permanent Account Number or Form No. 60 as defined
      in Income Tax Rules, 1962,
      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:
                                                                              H
480      SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     Provided that where an Aadhaar number has not been assigned
      to a client, the client shall furnish proof of application of enrolment
      for Aadhaar and in case the Permanent Account Number is not
      submitted, one certified copy of an ‘officially valid document’ shall
      be submitted.
B     Provided further that photograph need not be submitted by a client
      falling under clause (b) of sub-rule (1).
      (4A) Where the client is an individual, who is not eligible to be
      enrolled for an Aadhaar number, he shall for the purpose of sub-
      rule (1), submit to the reporting entity, the Permanent Account
C     Number or Form No. 60 as defined in the Income Tax Rules,
      1962:
      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
D     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
E     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
F     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
G     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;
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            481
                   [A. K. SIKRI, J.]

   (iii) the small account shall remain operational initially for a period    A
   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
                                                                              B
   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 other
   high risk scenarios, the identity of client shall be established through
   the production of officially valid documents, as referred to in sub-
   rule (4) and the Aadhaar number of the client or where an Aadhaar          C
   number has not been assigned to the client, through the production
   of proof of application towards enrolment for Aadhaar along with
   an officially valid document;
   Provided further that if the client is not eligible to be enrolled for
   an Aadhaar number, the identity of client shall be established             D
   through the production of an officially valid document;
   (v) the foreign remittance shall not be allowed to be credited into
   the small account unless the identity of the client is fully established
   through the production of officially valid documents, as referred
   to in sub-rule (4) and the Aadhaar number of the client or where           E
   an Aadhaar number has not been assigned to the client, through
   the production of proof of application towards enrolment for
   Aadhaar along with an officially valid document:
   Provided that if the client is not eligible to be enrolled for the
   Aadhaar number, the identity of client shall be established through        F
   the production of an officially valid document.
   (6) Where the client is a company, it shall for the purposes of sub-
   rule (1), submit to the reporting entity the certified copies of the
   following documents:-
                                                                              G
   (i) Certificate of incorporation;
   (ii) Memorandum and Articles of Association;
   (iii) A resolution from the Board of Directors and power of attorney
   granted to its managers, officers or employees to transact on its
   behalf;                                                                    H
482      SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     (iv) (a) Aadhaar numbers; and
      (b) Permanent Account Numbers or Form 60 as defined in the
      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
B     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
C     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
D     of the following documents:-
      (i) registration certificate;
      (ii) partnership deed; and
      (iii) (a) Aadhaar number; and
E     (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
F     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
G     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:-
H
JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             483
                   [A. K. SIKRI, J.]

   (i) registration certificate;                                               A
   (ii) trust deed; and
   (iii) (a) Aadhaar number; and
   (b) Permanent Account Number or Form 60 as defined in the
   Income Tax Rules, 1962,                                                     B
   issued to the person holding an attorney to transact on its behalf
   or where 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:                                                         C
              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.                                          D
   (9) Where the client is an unincorporated association or a body of
   individuals, it shall submit to the reporting entity the certified copies
   of the following documents:-
   (i) resolution of the managing body of such association or body of
   individuals;                                                                E
   (ii) power of attorney granted to him to transact on its behalf;
   (iii) (a) the Aadhaar number; and
   (b) Permanent Account Number or Form 60 as defined in the
   Income Tax Rules, 1962,                                                     F
   issued to the person holding an attorney to transact on its behalf
   or where Aadhaar number has not been assigned, proof of
   application towards enrolment for Aadhaar and in case the
   Permanent Account Number is not submitted an officially valid
   document shall be submitted; and                                            G
   (iv) such information as may be required by the reporting entity to
   collectively establish the legal existence of such an association or
   body of individuals:
    Provided that for the purpose of this clause if the person holding
                                                                               H
484      SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     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.”
      (c) after sub-rule (14), the following sub-rules shall be inserted,
B     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.
C     (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 Meghalaya 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
D     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)
E     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:

F      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)
G
      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 enrolment camps at convenient
      locations for providing enrolment facilities in consultation with
H     UIDAI and any individual desirous of commencing an account
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           485
                    [A. K. SIKRI, J.]

      based relationship as provided in this rule, who does not possess       A
      the Aadhaar number or has not yet enrolled for Aadhaar, may
      also visit such special Aadhaar enrolment camps for Aadhaar
      enrolment or any of the Aadhaar enrolment centres in the vicinity
      with existing registrars of UIDAI.
      (c) In case the client fails to submit the Aadhaar number and           B
      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       C
      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.
                                                                              D
      (18) In case the identity information relating to the Aadhaar number
      or Permanent Account Number submitted by the client referred
      to in sub-rules (4) to (9) of rule 9 does not have current address of
      the client, the client shall submit an officially valid documents to
      the reporting entity.”
                                                                              E
      As can be seen from the above, linking of Aadhaar with the bank
account is now mandatory. It applies not only to those bank accounts
which would be opened after the bringing into force the amendment but
even the existing accounts as well.
       427. Linking of a banking account to Aadhaar is challenged as          F
violative of Articles 14, 19(1)(g) and 21 of the Constitution and also of
Prevention of Money Laundering Act, 2002. Elaborate submissions were
made by Mr. Arvind Datar on the aforesaid aspects. It was argued that
those persons who do not choose to enrol for Aadhaar number would
not be in a position to open the bank account or even operate the existing
bank account and there is no valid explanation as to why all bank accounts    G
had to be authenticated. It was also argued that provisions of the Rule
referred to companies, firms, trust etc. as well, though the Aadhaar Act
is meant for establishing identity of individuals only. It was further
submitted that in case a person fails to link Aadhaar with the bank
account, such person would be rendered ineligible to operate the bank
                                                                              H
486                SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A     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
B
      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.
C     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
D     every contention raised by the petitioners. Our considered opinion is
      that it does not meet the test of proportionality and is also violative of
      right to privacy of a person which extends to banking details.
            430. This Court has held in Ram Jethmalani & Ors. v. Union of
      India & Ors.155 that revelation of bank details without prima facie
E     ground of wrong doing would be violative of right to privacy. The said
      decision has been approved in K.S. Puttaswamy. Under the garb of
      prevention of money laundering or black money, there cannot be such a
      sweeping provision which targets every resident of the country as a
      suspicious person. Presumption of criminality is treated as
F     disproportionate and arbitrary.
            431. Nobody would keep black money in the bank account. We
      accept the possibility of opening an account in an assumed name and
      keeping black money therein which can be laundered as well. However,
      the persons doing such an Act, if at all, would be very few. More
G     importantly, those having bank accounts with modest balance and routine
      transactions can be safely ruled out. Therefore, the provision in the
      present form does not meet the test of proportionality. Therefore, for
      checking this possible malice, there cannot be a mandatory provision for
      linking of every bank account.
      155
            (2011) 8 SCC 1
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                487
                     [A. K. SIKRI, J.]

      432. In Lal Babu Hussein v. Electoral Registration Officer                    A
and Others156, this Court had struck down the order of the Electoral
Officer asking the residents of a particular en masse to prove their identity
as unconstitutional. The Court held that the Electoral officer asking
residents of a particular area en masse to prove their identity was
unconstitutional. In the case, the EO went on the assumption that all
                                                                                    B
inhabitants of a particular area were foreigners, notwithstanding their
name appearing in earlier electoral rolls. The court held the following:
          (a) Right to vote cannot be disallowed by insisting only on 4 proofs
          of identity-voters can rely on any other proof of identity and obtain
          right to vote.
                                                                                    C
          (b) Notices were quashed because they failed to distinguish
          between existing voters who had voted several times and new
          voters.
          (c) Large-scale presumption of illegality impermissible.
        433. This linking is made compulsory not only for opening a new             D
bank account but even for existing bank accounts with a stipulation that
if the same is not done then the account would be deactivated, with the
result that the holder of the account would not be entitled to operate the
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              E
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          F
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
                                                                                    G
          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”;
156
      (1995) 3 SCC 100
                                                                                    H
488            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A           (c) there are alternative methods of KYC which the banks are
            already undertaking, the state has not discharged its burden as to
            why linking of Aadhaar is imperative. We may point out that
            RBI’s own Master Direction (KYC Direction, 2016) No.
            DBR.AML.BC. No. 81/14.01.001/2015-16 allows using
            alternatives to Aadhaar to open bank accounts.
B
             435. There may be legitimate State aim for such a move as it
      aims at prevention of money laundering and black money. However,
      there has not been a serious thinking while making such a provision
      applicable for every bank account. Maintaining back account in today’s
      world has almost become a necessity. The Government itself has
C     propagated the advantages thereof and is encouraging people to open
      the bank account making it possible to have one even with Zero Balance
      under the Pradhan Mantri Jan Dhan Yojana. The Government has
      taken various measures to give a boost to digital economy. Under these
      schemes, millions of persons, who are otherwise poor, are opening their
D     bank accounts. They are also becoming habitual to the good practice of
      entering into transactions through their banks and even by using digital
      modes for operation of the bank accounts. Making the requirement of
      Aadhaar compulsory for all such and other persons in the name of
      checking money laundering or black money is grossly disproportionate.
      There should have been a proper study about the methods adopted by
E     persons who indulge in money laundering, kinds of bank accounts which
      such persons maintain and target those bank accounts for the purpose
      of Aadhaar. It has not been done.
          436. We, thus, hold the amendment to Rule 9, by the Seventh
      Amendment Rules, 2017, in the present form, to be unconstitutional.
F
            Linking of Mobile Number with Aadhaar
             437. By a Circular dated March 23, 2017, the Department of
      Telecommunications has directed that all licensees shall reverify the
      existing mobile subscribers (pre-paid and post-paid) through Aadhaar
G     based e-KYC process. In fine, it amounts to mandatory linking of mobile
      connections with Aadhaar, which requirement is not only in respect of
      those individuals who would be becoming mobile subscribers, but applies
      to existing subscribers as well.
            438. It was the submission of the petitioners that such a linking of
      the SIM card with Aadhaar number violates their right to privacy. It is
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           489
                     [A. K. SIKRI, J.]

argued that since it is a fundamental right, the restrictions/curb thereupon   A
in the form of said linking does not satisfy the tests laid down in K.S.
Puttaswamy inasmuch 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       B
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 &            C
Anr.157 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           D
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 for establishing, maintaining and working telegraphs, it is within
the power of the Central Government to grant such licenses with condition
and, therefore, Circular dated March 23, 2017 may be read as condition         E
for grant of licenses. On this premise, attempt is to show that the Circular
is issued in exercise of the powers contained in Section 4 of the Indian
Telegraph Act, 1885 which is the force of law.
      440. In order to appreciate the respondents’ contentions, we
reproduce the relevant portion of Circular dated March 23, 2017, which         F
reads as under:
         “Hon’ble Supreme Court, in its order dated 06.02.2017 passed in
         Writ Petition (C) No. 607/2016 filed by Lokniti Foundation v/s
         Union of India, while taking into cognizance of “Aadhaar based
         e-KYC process for issuing new telephone connection” issued by         G
         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
157
      (2017) 7 SCC 155                                                         H
490             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A            today, a similar verification will be completed, in case of existing
             subscribers.” This amounts to a direction which is to be completed
             within a time frame of one year.
             2. A meeting was held on 13.02.2017 in the Department with the
             telecom industry wherein UIDAI, TRAI and PMO representatives
B            also participated to discuss the way forward to implement the
             directions of Hon’ble Supreme Court. Detailed discussions and
             deliberations were held in the meeting. The suggestions received
             from the industry have been examined in the Department.
             3. Accordingly, after taking into consideration the discussions
C            held in the meeting and suggestions received from telecom industry,
             the undersigned is directed to convey the approval of competent
             authority that all Licensees shall re-verify all existing mobile
             subscribers (prepaid and postpaid) through Aadhaar based e-KYC
             process as mentioned in this office letter No. 800-29/2010-VAS
             dated 16.08.2016. The instructions mentioned in subsequent
D            paragraphs shall be strictly followed while carrying out the
             re-verification exercise.”
              441. In the first instance, it may be noticed that reference is made
      to the judgment of this Court in Lokniti Foundation which has prompted
      the Ministry of Communications to issue this circular. Paragraph 1 of
E     the Circular itself states that 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
F     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.
G     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
H     deliberate on the aspects of necessity of such a provision in the light of
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           491
                     [A. K. SIKRI, J.]

right to privacy. It was a case where both the sides were at ad idem. In       A
the absence of any such issue or discussion thereupon, such a case
cannot be treated as precedent and as a corollary it cannot be termed as
‘law’ within the meaning of Article 13 or Article 141 of the Constitution.
Moreover, we are unable to read the order in Lokniti Foundation as a
direction of the Court. It simply disposed of the petition after recording
                                                                               B
the submission of the Union of India to the effect that the grievance of
the petitioner therein stood redressed by evolving the procedure of linking.
On that the Court simply observed that undertaking given to this Court
will be seriously taken and given effect to. No doubt, the Central
Government, as a licensor, can impose conditions while granting licenses
under Section 4 of the Indian Telegraph Act, 1885. However, such               C
directions/conditions have to be legally valid. When it affects the rights
of the third parties (like the petitioners herein who are not party to the
licenses granted by the Government to the Telecom Service Providers)
they have a right to challenge such directions. Here, the case made out
by the petitioners is that it infringes their right to privacy.
                                                                               D
        442. We are of the opinion that not only such a circular lacks
backing of a law, it fails to meet the requirement of proportionality as
well. It does not meet ‘necessity stage’ and ‘balancing stage’ tests to
check the primary menace which is in the mind of the respondent
authorities. There can be other appropriate laws and less intrusive
alternatives. For the misuse of such SIM cards by a handful of persons,        E
the entire population cannot be subjected to intrusion into their private
lives. It also impinges upon the voluntary nature of the Aadhaar scheme.
We find it to be disproportionate and unreasonable state compulsion. It
is to be borne in mind that every individual/resident subscribing to a SIM
card does not enjoy the subsidy benefit or services mentioned in Section       F
7 of the Act.
     We, therefore, have no hesitation in declaring the Circular dated
March 23, 2017 as unconstitutional.
      Violation of the orders passed by this Court:
                                                                               G
       Whether certain actions of the respondents are in
contravention of the interim orders passed by the Court, if so, the
effect thereof?
       443. It was vehemently argued that this Court had passed number
of interim orders (which have already been taken note of in the beginning
                                                                               H
492             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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
B
      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
C     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.
D            445. We feel that it would have been better had a clarification
      been obtained from the Court after the passing of the Aadhaar Act before
      issuing such circulars and orders under Section 7. When the matter is
      sub judice in the Court and certain orders operating, the respondents
      should have shown some fairness by taking that route, which expectation
E     would be high where the respondent is the State. However, it would be
      difficult to hold the respondents in contempt of the orders passed by this
      Court. We may note that similar argument was advanced in Binoy
      Viswam, namely, insertion of Section 139AA in the Income Tax Act was
      in breach of interim orders passed by this Court. This argument was
      repelled in the following manner:
F
            “99. Main emphasis, however, is on the plea that Parliament or
            any State Legislature cannot pass a law that overrules a judgment
            thereby nullifying the said decision, that too without removing the
            basis of the decision. This argument appears to be attractive
            inasmuch as few orders are passed by this Court in pending writ
G           petitions which are to the effect that the enrolment of Aadhaar
            would be voluntary. However, it needs to be kept in mind that the
            orders have been passed in the petitions where Aadhaar Scheme
            floated as an executive/administrative measure has been
            challenged. In those cases, the said orders are not passed in a
H           case where the Court was dealing with a statute passed by
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             493
                     [A. K. SIKRI, J.]

      Parliament. Further, these are interim orders as the Court was of          A
      the opinion that till the matter is decided finally in the context of
      right to privacy issue, the implementation of the said Aadhaar
      Scheme would remain 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
                                                                                 B
      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,         C
      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
                                                                                 D
      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.”                                      E
      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         F
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    G
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.
      (b) Insofar as subsidies, benefits or services to be given by the          H
494            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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
B
      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 would submit his Aadhaar number
      and is also required to give her biometric information to that agency. On
      receiving this information and for the purpose of its authentication, the
C     said agency, known as Requesting Entity (RE), would send the request
      to the Authority which shall perform the job of authentication of Aadhaar
      number. On confirming the identity of a person, the individual is entitled
      to receive subsidy, benefit or service. Aadhaar number is permitted to
      be used by the holder for other purposes as well.
D            (c) In this whole process, any resident seeking to obtain an Aadhaar
      number is, in the first instance, required to submit her demographic
      information and biometric information at the time of enrolment. She,
      thus, parts with her photograph, fingerprint and iris scan at that stage by
      giving the same to the enrolling agency, which may be a private body/
      person. Likewise, every time when such Aadhaar holder intends to
E     receive a subsidy, benefit or service and goes to specified/designated
      agency or person for that purpose, she would be giving her biometric
      information to that RE, which, in turn, shall get the same authenticated
      from the Authority before providing a subsidy, benefit or service.
             (d) Attack of the petitioners to the Aadhaar programme and its
F     formation/structure under the Aadhaar Act is founded on the arguments
      that it is a grave risk to the rights and liberties of the citizens of this
      country which are secured by the Constitution of India. It militates
      against the constitutional abiding values and its foundational morality
      and has the potential to enable an intrusive state to become a surveillance
G     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.
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              495
                             [A. K. SIKRI, J.]

         (e) The respondents, on the other hand, have attempted to shake          A
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
                                                                                  B
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 enrolling agency, the said information gets
transmitted the Authorities/CIDR, that too in an encrypted form, and              C
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 received or stored in respect of purpose, location or nature
                                                                                  D
or transaction etc. Therefore, the question of profiling does not arise at
all.
         (f) In the aforesaid scenario, it is necessary, in the first instance,
to find out the extent of core information, biometric as well as
demographic, that is collected and stored by the Authority at the time of
enrolment as well as at the time of authentication. This exercise becomes         E
necessary in order to consider the argument of the petitioners about the
profiling of the Aadhaar holders. On going through this aspect, on the
basis of the powerpoint presentation given by Dr. Ajay Bhushan Pandey,
CEO of UIDAI, and the arguments of both the sides, including the
questions which were put by the petitioners to Dr. Pandey and the                 F
answers thereupon, the Court has come to the conclusion that minimal
possible data, demographic and biometric, is obtained from the Aadhaar
holders.
         (g) The Court also noticed that the whole architecture of Aadhaar
is devised to give unique identity to the citizens of this country. No            G
doubt, a person can have various documents on the basis of which that
individual can establish her identify. It may be in the form of a passport,
PAN card, ration card and so on. For the purpose of enrolment itself
number of documents are prescribed which an individual can produce
on the basis of which Aadhaar card can be issued. Thus, such documents,
                                                                                  H
496             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     in a way, are also proof of identity. However, there is a fundamental
      difference between the Aadhaar card as a mean of identity and other
      documents through which identity can be established. Enrolment for
      Aadhaar card also requires giving of demographic information as well
      as biometric information which is in the form of iris and fingerprints.
      This process eliminates any chance of duplication. It is emphasised that
B
      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
C     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.
D
               (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
E     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, they can claim various
      privileges and benefits etc. which are actually meant for these people.
F              (i) Identity of a person has a significance for every individual in
      his/her life. In a civilised society every individual, on taking birth, is
      given a name. Her place of birth and parentage also becomes important
      as she is known in the society and these demographic particulars also
      become important attribute of her personality. Throughout their lives,
G     individuals are supposed to provide such information: be it admission in a
      school or college or at the time of taking job or engaging in any profession
      or business activity, etc. When all this information is available in one
      place, in the form of Aadhaar card, it not only becomes unique, it would
      also qualify as a document of empowerment. Added with this feature,
      when an individual knows that no other person can clone her, it assumes
H     greater significance.
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                               497
                     [A. K. SIKRI, J.]

          (j) Thus, the scheme by itself can be treated as laudable when it        A
comes to enabling an individual to seek Aadhaar number, more so, when
it is voluntary in nature. Howsoever benevolent the scheme may be, it
has to pass the muster of constitutionality. According to the petitioners,
the very architecture of Aadhaar is unconstitutional on various grounds.
        (k) The Court has taken note of the heads of challenge of the              B
Act, Scheme and certain Rules etc. and clarified that the matter is
examined with objective examination of the issues on the touchstone of
the constitutional provisions, keeping in mind the ethos of constitutional
democracy, rule of law, human rights and other basic features of the
Constitution.
                                                                                   C
         Discussing the scope of judicial review, the Court has accepted
that apart from two grounds noticed in Binoy Viswam, on which legislative
Act can be invalidated [(a) the Legislature does not have competence to
make the law; and b) law made is in violation of fundamental rights or
any other constitutional provision], another ground, namely, manifest
arbitrariness, can also be the basis on which an Act can be invalidated.           D
The issues are examined having regard to the aforesaid scope of judicial
review.
          (l) From the arguments raised by the petitioners and the grounds
of challenge, it becomes clear that the main plank of challenge is that the
Aadhaar project and the Aadhaar Act infringes right to privacy. Inbuilt            E
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.
         (m) In view of the above, the Court discussed the contours of             F
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            G
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,
                                                                                   H
498             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A              (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
B     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
C     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 fundamental
      right as a facet not only of Article 21, but that of right to equality (Article
D     14) and also part of bouquet of freedoms stipulated in Article 19.
      Therefore, privacy as a right is intrinsic of freedom, liberty and dignity.
      Viewed in this manner, one can trace positive and negative contents of
      privacy. The negative content restricts the State from committing an
      intrusion upon the life and personal liberty of a citizen. Its positive content
E     imposes an obligation on the State to take all necessary measures to
      protect the privacy of the individual.
             (o) In developing the aforesaid concepts, the Court has been
      receptive to the principles in international law and international
      instruments. It is a recognition of the fact that certain human rights cannot
F     be confined within the bounds of geographical location of a nation but
      have universal application. In the process, the Court accepts the concept
      of universalisation of human rights, including the right to privacy as a
      human right and the good practices in developing and understanding
      such rights in other countries have been welcomed. In this hue, it can
      also be remarked that comparative law has played a very significant
G     role in shaping the aforesaid judgment on privacy in Indian context,
      notwithstanding the fact that such comparative law has only persuasive
      value.
            The whole process of reasoning contained in different opinions of
      the Hon’ble Judges would, thus, reflect that the argument that it is difficult
H     to precisely define the common denominator of privacy, was rejected.
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                              499
                     [A. K. SIKRI, J.]

While doing so, the Court referred to various approaches to formulating           A
privacy
       (p) We have also remarked above, the taxonomy of 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              B
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            C
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          D
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. This Court preferred
to adopt a ‘just, fair and reasonableness’ standard which is in tune with
the view expressed by majority of Judges in their opinion. Even otherwise,        E
this is in consonance with the judicial approach adopted by this Court
while construing ‘reasonable restrictions’ that the State can impose in
public interest, as provided in Article 19 of the Constitution. Insofar as
principles of human dignity are concerned, the Court, after taking note
of various judgments where this principle is adopted and elaborated,
summed up the essential ingredients of dignity jurisprudence by noticing          F
that the basic principle of dignity and freedom of the individual is an
attribute of natural law which becomes the right of all individuals in a
constitutional democracy. Dignity has a central normative role as well
as constitutional value. This normative role is performed in three ways:
       First, it becomes basis for constitutional rights;                         G
       Second, it serves as an interpretative principle for determining
the scope of constitutional rights; and,
       Third, it determines the proportionality of a statute limiting a
constitutional right. Thus, if an enactment puts limitation on a constitutional
                                                                                  H
500             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     right and such limitation is disproportionate, such a statute can be held to
      be unconstitutional by applying the doctrine of proportionality.
             (r) As per Dworkin, there are two principles about the concept of
      human dignity, First principle regards an ‘intrinsic value’ of every person,
      namely, every person has a special objective value which value is not
B     only important to that person alone but success or failure of the lives of
      every person is important to all of us. It can also be described as self
      respect which represents the free will of the person, her capacity to
      think for herself and to control her own life. The second principle is that
      of ‘personal responsibility’, which means every person has the
      responsibility for success in her own life and, therefore, she must use
C     her discretion regarding the way of life that will be successful from her
      point of view.
            (s) Sum total of this exposition can be defined by explaining that
      as per the aforesaid view dignity is to be treated as ‘empowerment’
      which makes a triple demand in the name of ‘respect’ for human dignity,
D     namely:
            (i) respect for one’s capacity as an agent to make one’s own free
            choices;
            (ii) respect for the choices so made; and
E           (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
F     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
G
      ‘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 segment. Their human dignity is based on
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                       501
                     [A. K. SIKRI, J.]

the socio-economic rights that are read in to the Fundamental Rights as                    A
already discussed above.
       When we read socio-economic rights into human dignity, the
community approach also assumes importance along with individualistic
approach to human dignity. It has now been well recognised that at its
core, human dignity contains three elements, namely, Intrinsic Value,                      B
Autonomy and Community Value. These are known as core values of
human dignity. These three elements can assist in structuring legal
reasoning and justifying judicial choices in ‘hard cases’.
       (v) When it comes to dignity as a community value, it emphasises
the role of the community in establishing collective goals and restrictions                C
on individual freedoms and rights on behalf of a certain idea of good life.
The relevant question here is in what circumstances and to what degree
should these actions be regarded as legitimate in a constitutional
democracy? The liberal predicament that the state must be neutral with
regard to different conceptions of the good in a plural society is not
incompatible, of course, with limitation resulting from the necessary                      D
coexistence of different views and potentially conflicting rights. Such
interferences, however, must be justified on grounds of a legitimate idea
of justice, an “overlapping consensus”158 that can be shared by most
individuals and groups. Whenever such tension arises, the task of balancing
is to be achieved by the Courts.                                                           E
         We would like to highlight one more significant feature which
the issues 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              F
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                        G
conferment of economic benefits.
158
    “Overlapping consensus” is a term coined by John Rawls that identifies basic ideas
of justice that can be shared by supporters of different religious, political, and moral
comprehensive doctrines.
                                                                                           H
502            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           (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
B
      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
C     thereupon are summarised below:
            (1) Whether the Aadhaar Project creates or has tendency to
      create surveillance state and is, thus, unconstitutional on this
      ground?
D           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 Rules provide such protection,
            including in respect of data minimisation, purpose limitation, time
E           period for data retention and data protection and security?
            Answer:
            (a) The architecture of Aadhaar as well as the provisions of the
      Aadhaar Act do not tend to create a surveillance state. This is ensured
      by the manner in which the Aadhaar project operates.
F
            (b) We have recorded in detail the powerpoint presentation that
      was given by Dr. Ajay Bhushan Pandey, CEO of the Authority, which
      brings out the following salient features:
            (i) During the enrolment process, minimal biometric data in the
G     form of iris and fingerprints is collected. The Authority does not collect
      purpose, location or details of transaction. Thus, it is purpose blind. The
      information collected, as aforesaid, remains in silos. Merging of silos is
      prohibited. The requesting agency is provided answer only in ‘Yes’ or
      ‘No’ about the authentication of the person concerned. The authentication
      process is not exposed to the Internet world. Security measures, as per
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           503
                     [A. K. SIKRI, J.]

the provisions of Section 29(3) read with Section 38(g) as well as             A
Regulation 17(1)(d) of the Authentication Regulations, are strictly
followed and adhered to.
      (ii) There are sufficient authentication security measures taken
as well, as demonstrated in Slides 14, 28 and 29 of the presentation.
      (iii) The Authority has sufficient defence mechanism, as explained       B
in Slide 30. It has even taken appropriate protection measures as
demonstrated in Slide 31.
     (iv) There is an oversight by Technology and Architecture Review
Board (TARB) and Security Review Committee.
                                                                               C
      (v) During authentication no information about the nature of
transaction etc. is obtained.
        (vi) The Authority has mandated use of Registered Devices (RD)
for all authentication requests. With these, biometric data is signed within
the device/RD service using the provider key to ensure it is indeed            D
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        E
to store biometrics captured for Aadhaar 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       F
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
                                                                               G
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.

                                                                               H
504             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A            (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 biometric and demographic
      information stored in CIDR. Insofar as authentication is concerned, the
B
      respondents rightly pointed out that there are sufficient safeguard
      mechanisms. To recapitulate, it was specifically submitted that there
      was security technologies in place (slide 28 of Dr. Pandey’s presentation),
      24/7 security monitoring, data leak prevention, vulnerability management
      programme and independent audits (slide 29) as well as the Authority’s
C     defence mechanism (slide 30). It was further pointed out that the
      Authority has taken appropriate pro-active protection measures, which
      included disaster recovery plan, data backup and availability and media
      response plan (slide 31). The respondents also pointed out that all security
      principles are followed inasmuch as: (a) there is PKI-2048 encryption
      from the time of capture, meaning thereby, as soon as data is given at
D
      the time of enrolment, there is an end to end encryption thereof and it is
      transmitted to the Authority in encrypted form. The said encryption is
      almost foolproof and it is virtually impossible to decipher the same; (b)
      adoption of best-in-class security standards and practices; and (c) strong
      audit and traceability as well as fraud detection. Above all, there is an
E     oversight of Technology and Architecture Review Board (TARB) and
      Security Review Committee. This Board and Committee consists of
      very high profiled officers. Therefore, the Act has endeavoured to provide
      safeguards.
             (d) Insofar as use and protection of data is concerned, having
F     regard to the principles enshrined in various cases, Indian and foreign,
      the matter is examined from the stand point of data minimisation, purpose
      limitation, time period for data retention, data protection and security
      (qua CIDR, requisite entities, enrolment agencies and Registrars,
      authentication service agency, hacking, biometric solution providers,
      substantive procedural or judicial safeguards). After discussing the
G     aforesaid aspect with reference to certain provisions of the Aadhaar
      Act, we are of the view that apprehensions of the petitioners stand
      assuaged with the striking down or reading down or clarification of some
      of the provisions, namely:

H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                             505
                     [A. K. SIKRI, J.]

       (i) Authentication records are not to be kept beyond a period of          A
           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.
       (ii) Metabase relating to transaction, as provided in Regulation 26       B
           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.                          C
       (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.                                                  D
       (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.                                                           E
     (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     F
to an individual do not qualify as being an inherent part of right to privacy.
Only those matters over which there would be a reasonable expectation
of privacy are protected by Article 21. This can be discerned from the
reading of Paras 297 to 307 of the judgment.
       (b) The Court is also of the opinion that the triple test laid down in    G
order to adjudge the reasonableness of the invasion to privacy has been
made. The Aadhaar scheme is backed by the statute, i.e. the Aadhaar
Act. It also serves legitimate State aim, which can be discerned from
the Introduction to the Act as well as the Statement of Objects and
Reasons which reflect that the aim in passing the Act was to ensure that
                                                                                 H
506             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     social benefit schemes reach the deserving community. The Court noted
      that the failure to establish identity of an individual has proved to be a
      major hindrance for successful implementation of those programmes as
      it was becoming difficult to ensure that subsidies, benefits and services
      reach the unintended beneficiaries in the absence of a credible system
      to authenticate identity of beneficiaries. The Statement of Objects and
B
      Reasons also discloses that over a period of time, the use of Aadhaar
      number has been increased manifold and, therefore, it is also necessary
      to take measures relating to ensuring security of the information provided
      by the individuals while enrolling for Aadhaar card.
               (c) It may be highlighted that the petitioners are making their claim
C     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
D     in Para IV of the Constitution. The rationale behind Section 7 lies in
      ensuring targeted delivery of services, benefits and subsidies which are
      funded from the Consolidated Fund of India. In discharge of its solemn
      Constitutional obligation to enliven the Fundamental Rights of life and
      personal liberty (Article 21) to ensure Justice, Social, Political and
      Economic and to eliminate inequality (Article 14) with a view to ameliorate
E     the lot of the poor and the Dalits, the Central Government has launched
      several welfare schemes. Some such schemes are PDS, scholarships,
      mid day meals, LPG subsidies, etc. These schemes involve 3%
      percentage of the GDP and involve a huge amount of public money.
      Right to receive these benefits, from the point of view of those who
F     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
G     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
H
 JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           507
                    [A. K. SIKRI, J.]

of the society to receive such benefits on the premise that it is their       A
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 approach to a right based approach. As a consequence,
right of everyone to adequate food no more remains based on Directive
                                                                              B
Principles of State Policy (Art 47), though the said principles remain a
source of inspiration. This entitlement has turned into a Constitutional
fundamental right. This Constitutional obligation is reinforced by
obligations under International Convention.
      (d) Even the petitioners did not seriously question the purpose and
bona fides of the Legislature enacting the law.                               C

        (e) The Court also finds that the Aadhaar Act meets the test of
proportionality as the following components of proportionality stand
satisfied:
      (i) A measure restricting a right must have a legitimate goal           D
          (legitimate goal stage).
      (ii) It must be a suitable means of furthering this goal (suitability
          or rationale connection stage).
      (iii) There must not be any less restrictive but equally effective
          alternative (necessity stage).                                      E
      (iv) The measure must not have a disproportionate impact on the
         right holder (balancing stage).
      (f) In the process, the Court has taken note of various judgments
pronounced by this Court pertaining to right to food, issuance of BPL
                                                                              F
Cards, LPG connections and LPG cylinders at minimal cost, old age and
other kind of pensions to deserving persons, scholarships and
implementation of MGNREGA scheme.
       (g) The purpose behind these orders was to ensure that the
deserving beneficiaries of the scheme are correctly identified and are
able to receive the benefits under the said scheme, which is their            G
entitlement. The orders also aimed at ensuring ‘good governance’ by
bringing accountability and transparency in the distribution system with
the pious aim in mind, namely, benefits actually reached those who are
rural, poor and starving.
                                                                              H
508             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A           (h) All this satisfies the necessity stage test, particularly in the
      absence of any less restrictive but equally effective alternative.
            (i) Insofar as balancing is concerned, the matter is examined at
      two levels:
             (i) Whether, ‘legitimate state interest’ ensures ‘reasonable
B            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
C            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
D            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?
E
             (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
F     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, namely, dignity in the form
      of autonomy (informational privacy) and dignity in the form of assuring
      better living standards of the same individual, the Court has arrived at
G     the conclusion that balancing at the second level is also met. The detailed
      discussion in this behalf amply demonstrates that enrolment in Aadhaar
      of the unprivileged 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
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            509
                     [A. K. SIKRI, J.]

to avail the fruits of welfare schemes of the Government which are              A
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.
                                                                                B
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       C
their profiles. In fact, this technology becomes a vital tool of ensuring
good governance in a social welfare state. We, therefore, are of the
opinion that the Aadhaar Act meets the test of balancing as well.
       (k) Insofar as the argument based on probabilistic system of
Aadhaar, leading to ‘exclusion’ is concerned, the Authority has claimed         D
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,            E
pilferages and corruption in the implementation of welfare schemes meant
for marginalised section of the society, the full fruits thereof were not
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              F
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       G
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:
                                                                                H
510            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A           (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
B           happen in the case of a child after she grows up; it may happen in
            the case of an individual who gets old; it may also happen because
            of damage to the fingers as a result of accident or some disease
            etc. or because of suffering of some kind of disability for whatever
            reason. Even iris test can fail due to certain reasons including
            blindness of a person. We again emphasise that no person
C           rightfully entitled to the benefits shall be denied the same on such
            grounds. It would be appropriate if a suitable provision be made
            in the concerned regulations for establishing an identity by alternate
            means, in such situations.
            (m) As far as subsidies, services and benefits are concerned, their
D     scope is not to be unduly expanded thereby widening the net of Aadhaar,
      where it is not permitted otherwise. In this respect, it is held as under:
            (i) ‘Benefits’ and ‘services’ as mentioned in Section 7 should be
            those which have the colour of some kind of subsidies etc., namely,
            welfare schemes of the Government whereby Government is
E           doling out such benefits which are targeted at a particular deprived
            class.
            (ii) It would cover only those ‘benefits’ etc. the expenditure thereof
            has to be drawn from the Consolidated Fund of India.

F           (iii) On that basis, CBSE, NEET, JEE, UGC etc. cannot make the
            requirement of Aadhaar mandatory as they are outside the purview
            of Section 7 and are not backed by any law.
            (3) Whether children can be brought within the sweep of
      Sections 7 and 8 of the Aadhaar Act?
G           Answer:
            (a) For the enrolment of children under the Aadhaar Act, it would
      be essential to have the consent of their parents/guardian.
            (b)On attaining the age of majority, such children who are enrolled
      under Aadhaar with the consent of their parents, shall be given the option
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           511
                     [A. K. SIKRI, J.]

to exit from the Aadhaar project if they so choose in case they do not         A
intend to avail the benefits of the scheme.
       (c) Insofar as the school admission of children is 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      B
21A of the Constitution, school admission cannot be treated as ‘benefit’
as well.
     (d) Benefits to children between 6 to 14 years under Sarv Shiksha
Abhiyan, likewise, shall not require mandatory Aadhaar enrolment.
       (e) For availing the benefits of other welfare schemes which are        C
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     D
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               E
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                               F
      (iv) Section 2(v)
      (v) Section 3
      (vi) Section 5
      (vii) Section 6                                                          G
      (viii) Section 8
      (ix) Section 9
      (x) Sections 11 to 23
                                                                               H
512            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A           (xi) Sections 23 and 54
            (xii) Section 23(2)(g) read with Chapter VI & VII – Regulations
                27 to 32
            (xiii) Section 29
B           (xiv) Section 33
            (xv) Section 47
            (xvi) Section 48
            (xvii) Section 57
C           (xviii) Section 59
            Answer:
             (a) Section 2(d) which pertains to authentication records, such
      records would not include metadata as mentioned in Regulation 26(c) of
      the Aadhaar (Authentication) Regulations, 2016. Therefore, this provision
D     in the present form is struck down. Liberty, however, is given to reframe
      the regulation, keeping in view the parameters stated by the Court.
             (b) Insofar as Section 2(b) is concerned, which defines ‘resident’,
      the apprehension expressed by the petitioners was that it should not lead
      to giving Aadhaar card to illegal immigrants. We direct the respondent
E     to take suitable measures to ensure that illegal immigrants are not able
      to take such benefits.
             (c) Retention of data beyond the period of six months is
      impermissible. Therefore, Regulation 27 of Aadhaar (Authentication)
      Regulations, 2016 which provides archiving a data for a period of five
F     years is struck down.
             (d) Section 29 in fact imposes a restriction on sharing information
      and is, therefore, valid as it protects the interests of Aadhaar number
      holders. However, apprehension of the petitioners is that this provision
      entitles Government to share the information ‘for the purposes of as
G     may be specified by regulations’. The Aadhaar (Sharing of Information)
      Regulations, 2016, as of now, do not contain any such provision. If a
      provision is made in the regulations which impinges upon the privacy
      rights of the Aadhaar card holders that can always be challenged.
            (e) Section 33(1) of the Act prohibits disclosure of information,
H     including identity information or authentication records, except when it
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                           513
                     [A. K. SIKRI, J.]

is by an order of a court not inferior to that of a District Judge. We have    A
held that this provision is to be read down with the clarification that an
individual, whose information is sought to be released, shall be afforded
an opportunity of hearing. If such an order is passed, in that eventuality,
he shall also have right to challenge such an order passed by approaching
the higher court. During the hearing before the concerned court, the
                                                                               B
said individual can always object to the disclosure of information on
accepted grounds in law, including Article 20(3) of the Constitution or
the privacy rights etc.
       (f) Insofar as Section 33(2) is concerned, it is held that disclosure
of information in the interest of national security cannot be faulted with.
However, for determination of such an eventuality, an officer higher           C
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       D
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         E
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     F
identity of an individual ‘for any purpose’. We read down this provision
to mean that such a purpose has to be backed by law. Further, whenever
any such “law” is made, it would be subject to judicial scrutiny. (b) Such
purpose is not limited pursuant to any law alone but can be done pursuant
to ‘any contract to this effect’ as well. This is clearly impermissible as
a contractual provision is not backed by a law and, therefore, first           G
requirement of proportionality test is not met. (c) Apart from authorising
the State, even ‘any body corporate or person’ is authorised to avail
authentication services which can be on the basis of purported agreement
between an individual and such body corporate or person. Even if we
presume that legislature did not intend so, the impact of the aforesaid        H
514             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     features would be to enable commercial exploitation of an individual
      biometric and demographic information by the private entities. Thus,
      this part of the provision which enables body corporate and individuals
      also to seek authentication, that too on the basis of a contract between
      the individual and such body corporate or person, would impinge upon
      the right to privacy of such individuals. This part of the section, thus, is
B
      declared unconstitutional.
            (i) Other provisions of Aadhaar Act are held to be valid, including
      Section 59 of the Act which, according to us, saves the pre-enactment
      period of Aadhaar project, i.e. from 2009-2016.
C          (5) Whether the Aadhaar Act defies the concept of Limited
      Government, Good Governance and Constitutional Trust?
            Answer:
           Aadhaar Act meets the concept of Limited Government, Good
      Governance and Constitutional Trust.
D
            (6) Whether the Aadhaar Act could be passed as ‘Money Bill’
      within the meaning of Article 110 of the Constitution?
            Answer:
             (a) We do recognise the importance of Rajya Sabha (Upper House)
E     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. The Rajya Sabha, therefore, becomes an important
      institution signifying constitutional fedaralism. It is precisely for this
      reason that to enact any statute, the Bill has to be passed by both the
      Houses, namely, Lok Sabha as well as Rajya Sabha. It is the constitutional
F
      mandate. The only exception to the aforesaid Parliamentary norm is
      Article 110 of the Constitution of India. Having regard to this overall
      scheme of bicameralism enshrined in our Constitution, strict interpretation
      has to be accorded to Article 110. Keeping in view these principles, we
      have considered the arguments advanced by both the sides.
G            (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
H     and, therefore, Bill was not limited to only those subjects mentioned in
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                                 515
                     [A. K. SIKRI, J.]

Article 110. Insofar as Section 7 is concerned, it makes receipt of subsidy,         A
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
                                                                                     B
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 of Aadhaar Act is to ensure that such
subsidies, benefits and services reach those categories of persons, for
whom they are actually meant.
       (c) As all these three kinds of welfare measures are sought to be             C
extended to the marginalised section of society, a collective reading thereof
would show that the purpose is to expand the coverage of all kinds of
aid, support, grant, advantage, relief provisions, facility, utility or assistance
which may be extended with the support of the Consolidated Fund of
India with the objective of targeted delivery. It is also clear that various         D
schemes which can be contemplated by the aforesaid provisions, relate
to vulnerable and weaker section of the society. Whether the social
justice scheme would involve a subsidy or a benefit or a service is merely
a matter of the nature and extent of assistance and would depend upon
the economic capacity of the State. Even where the state subsidizes in
part, whether in cash or kind, the objective of emancipation of the poor             E
remains the goal.
        (d) The respondents are right in their submission that the expression
subsidy, benefit or service ought to be understood in the context of targeted
delivery to poorer and weaker sections of society. Its connotation ought
not to be determined in the abstract. For as an abstraction one can                  F
visualize a subsidy being extended by Parliament to the King; by
Government to the Corporations or Banks; etc. The nature of subsidy
or benefit would not be the same when extended to the poor and
downtrodden for producing those conditions without which they cannot
live a life with dignity. That is the main function behind the Aadhaar Act           G
and for this purpose, enrolment for Aadhaar number is prescribed 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                          H
516             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     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
B
      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
C     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?
D           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
E     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 invasion of privacy, namely: (i) the
      existence of a law; (ii) a ‘legitimate State interest’; and (iii) such law
      should pass the ‘test of proportionality’, we come to the conclusion that
F     all these tests are satisfied. In fact, there is specific discussion on these
      aspects in Binoy Viswam’s case as well.
            (8) Whether Rule 9 of the Prevention of Money Laundering
      (Maintenance of Records) Rules, 2005 and the notifications issued
      thereunder which mandates linking of Aadhaar with bank accounts
G     is unconstitutional?
            Answer:
             (a) We hold that the provision in the present form does not meet
      the test of proportionality and, therefore, violates the right to privacy of
      a person which extends to banking details.
H
  JUSTICE K. S. PUTTASWAMY (RETD.) v. UNION OF INDIA                            517
                     [A. K. SIKRI, J.]

        (b) This linking is made compulsory not only for opening a new          A
bank account but even for existing bank accounts with a stipulation that
if the same is not done then the account would be deactivated, with the
result that the holder of the account would not be entitled to operate the
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
                                                                                B
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       C
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.
       (c) The Rules are held to be disproportionate for the reasons stated
in the main body of this Judgment.                                              D
     (9) Whether Circular dated March 23, 2017 issued by the
Department of Telecommunications mandating linking of mobile
number with Aadhaar is illegal and unconstitutional?
      Answer:
                                                                                E
      Circular dated March 23, 2017 mandating linking of mobile number
with Aadhaar is held to be illegal and unconstitutional as it is not backed
by any law and is hereby quashed.
      (10) Whether certain actions of the respondents are in
contravention of the interim orders passed by the Court, if so, the effect      F
thereof?
      Answer:
      This question is answered in the negative.
       448. In view of the aforesaid discussion and observations, the
writ petitions, transferred cases, special leave petition, contempt petitions   G
and all the pending applications stand disposed of.




                                                                                H
518             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     ASHOK BHUSHAN, J.
             1. 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
B     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
C     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)
D     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 come to the different prayers made in the Writ
E     Petitions wherein Executive Scheme dated 28.01.2009 as well as Act,
      2016 has been challenged, it is useful to notice certain background facts,
      which lead to issuance of notification dated 28.01.2009 as well as the
      Act, 2016.
             4. India is a country, which caters a sea of population. When the
F     British left our country in 1947, total population of the country was only
      330 million, which has rapidly increased into enormous figure of 1.3
      billion as on date. The Citizenship Act, 1955 was enacted by the
      Parliament for the acquisition and determination of Indian Citizenship.
      Our constitutional framers have provided for adult franchise to every
      adult citizens. Election Commission of India had taken steps to provide
G
      for an identity card to each person to enable him to exercise his franchise.
      The Citizenship Act, 1955 was amended by the Act 6 of 2004 whereas
      Section 14A was inserted providing that Central Government may
      compulsorily register every citizen of India and issue national identity
      card to him. The Planning Commission of the Government of India
H     conceived a Unique Identification Project for providing a Unique Identity
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              519
                 [ASHOK BHUSHAN, J.]

Number for each resident across the country, which was initially                A
envisaged primarily as the basis for the efficient delivery of welfare
services.
       5. At first, in the year 2006, administrative approval was granted
for the project “Unique Identity for BPL Families”. A Process Committee
was constituted, which prepared a strategic vision on the Unique                B
Identification Project. The Process Committee furnished a detailed
proposal to the Planning Commission in the above regard. The Prime
Minister approved the constitution of an empowered Group of Ministers
to collate the two spheres, the national population register under the
Citizenship Act, 1955 and the Unique Identification Number Project of
the Department of Information Technology. The empowered Group of                C
Ministers recognised the need for creating an identity related resident
database and to establish an institutional mechanism, which shall own
the database and shall be responsible for its maintenance and updations
on ongoing basis. The empowered Group of Ministers held various
meetings to which inputs were provided from different sources including         D
Committee of Secretaries. The recommendation of empowered Group
of Ministers to constitute Unique Identification 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,            E
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        F
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.) & Anr. Vs.                G
Union of India & 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 Article 21 of the Constitution
of India are adversely affected by the Executive action of the Central
Government proceeding to implement an Executive order dated
                                                                                H
520            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     28.01.2009 and thereby issuing Aadhaar numbers to both citizens as
      also illegal immigrants presently illegally residing in the country. While
      the Bill namely “National Identification Authority of India Bill, 2010”,
      which had already been introduced in the Rajya Sabha on 03.12.2010
      and referred to the Standing Committee, had been rejected. The Writ
      Petition prayed for following reliefs:-
B
              (A) ISSUE a writ in the nature of mandamus restraining the
                  respondents Nos. 1 to 3 from issuing Aadhaar Numbers by
                  way of implementing its Executive order dated 28.01.2009
                  (Annexure “P-1”) which tentamount to implementing the
                  provisions of the National Identification Authority of India
C                 Bill, 2010 pending before the Parliament until and unless
                  the said Bill is considered and passed by the Parliament
                  and becomes an Act of Parliament.
              (B) Pass such other order/s as this Hon’ble Court may deem
                  fit and proper in the circumstances of the case.
D
             7. Writ Petition (C) No. 829 of 2013 - Mr. S.G. Vombatkere &
      Anr. Vs. Union of India & Ors., was filed by Mr. S.G. Vombatkere and
      Bezwada Wilson questioning the UID Project and Aadhaar Scheme.
      The UID Project and Aadhaar Scheme were contended to be illegal and
      violative of fundamental rights. It was also contended that the Scheme
E     has no legislative sanction. Various other grounds for attacking the Scheme
      were enumerated in the Writ Petition. Writ Petition (C) No. 833 of 2013
      – Ms. Aruna Roy & Anr. Vs. Union of India & Ors., was also filed
      challenging the UID Scheme. Other Writ Petitions being Writ Petition
      (C) No. 932 of 2013 and Writ Petition (C) No. 37 of 2015 came to be
F     filed challenging the UID Scheme.
             8. S.G. Vombatkere and Bezwada Wilson filed another Writ
      Petition (C) No. 220 of 2015 challenging the exercise of preparation of
      the National Population Register. Section 14A of the Citizenship Act,
      1955 was also challenged as void and ultra vires. Petitioners have referred
G     to earlier Writ Petition (C) No. 829 of 2013 and adopted the grounds
      already raised in the earlier Writ Petition. Writ petitioner had also
      challenged the collection of confidential biometric informations, which is
      neither sanctioned nor authorised under any Act or Rules.
            9. The Parliament enacted the Act, 2016, which contains
      following preamble:-
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                 521
                 [ASHOK BHUSHAN, J.]

        “An Act to provide for, as a good governance, efficient,                   A
        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.”
                                                                                   B
       10. The Writ Petition (C) No. 231 of 2016- Shri Jairam Ramesh
Vs. Union of India & 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 & Ors.
Vs. Union of India & Ors., was also filed by S. G. Vombatkere and
Bezwada Wilson challenging the Act, 2016. The petitioners have also                C
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           D
and null and void were also made. The writ petitioners claimed lots of
reliefs from a to w, it is useful to quote the reliefs a to d, which are to the
following effect:-
        “a) Issue a Writ, order or direction in the nature of Certiorari or
            any other appropriate writ/order/direction declaring that the          E
            Aadhaar (Targeted Delivery of Financial and Other
            Subsidies, Benefits and Services) Act, 2016 is ultra vires,
            unconstitutional, null and void and in particular violate
            Articles 14, 19 and 21 of the Constitution of India;
        b)    Issue a Writ, order or direction in the nature of Certiorari or      F
              any other appropriate writ/order/direction declaring that
              sections 2(h), 2(l), 2(m), 2(v), 3, 5, 6, 7, 8, 9, 10, Chapter IV,
              Section 23 read with Section 54, Section 29, Section 30,
              Section 33, Section 47, Section 57 and Section 59 of the
              Aadhaar (Targeted Delivery of Financial and Other
              Subsidies, Benefits and Services) Act, 2016 are ultra vires,         G
              unconstitutional, null and void and in particular violate
              Articles 14, 19, 20(3) and 21 of the Constitution of India;
        c)    Issue a Writ, order or direction in the nature of Certiorari or
              any other appropriate writ/order/direction declaring that the
                                                                                   H
522             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A                   right to privacy is a fundamental right guaranteed under
                    Part III of the Constitution of India;
              d)    Issue a Writ, order or direction in the nature of Certiorari or
                    any other appropriate writ/order/direction declaring that no
                    person may be deprived of receiving any financial subsidy
B                   or other subsidy or benefit or services from the State on
                    the ground that he or she does not have an Aadhaar
                    number;”
             11. Writ Petition (C) No. 342 of 2017 - Shantha Sinha & Anr.
      Vs. Union of India & Anr. Was filed challenging the Act, 2016. Apart
C     from seeking a direction to declare various Sections of Act, 2016 as null
      and void, writ petitioners also prayed for a direction declaring Sections
      2(h), 2(l), 2(m), 2(v), 3, 5, 6, 7, 8, 9, 10, Chapter IV, Section 23 read with
      Section 54, Section 29, Section 30, Section 33, Section 47, Section 57
      and Section 59 of the Act, 2016 as ultra vires, unconstitutional and null
      and void. Writ Petition (Civil) NO. 372 of 2017 - Shankar Prasad Dangi
D     Vs. Bharat Cooking Coal Limited & Another, was filed by Shankar Prasad
      Dangi, who claims to be employed under the Bharat Cooking Coal
      Limited. Petitioner filed the writ petition seeking a mandamus directing
      the respondents not to compel the petitioner to submit the Aadhaar Card
      copy. The petitioner placed reliance on Order of this Court dated
E     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
F     Petition (C) No. 1058 of 2017 – Mathew Thomas Vs. Union of India &
      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
G     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 Vs. Union
      of India through its Secretary & Ors. has been filed seeking following
      prayers:-
H
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            523
                [ASHOK BHUSHAN, J.]

       “a) Issue a Writ of Mandamus or any other appropriate writ,           A
           order or direction under Article 32 of the Constitution of
           India, directing the Respondents to declare that Aadhaar is
           not mandatory for the purpose of authentication while
           obtaining a mobile connection; or the re-verification of
           Subscribers, being completely illegal, arbitrary and mala fide;
                                                                             B
           and/or
       b)   Issue a Writ of Mandamus or any other appropriate writ,
            order or direction under Article 32 of the Constitution of
            India, directing the Respondents Number 2 to 6, to take
            immediate steps in the present situation, for restraining and
            banning the transfer of data from UIDAI to Private Telecom       C
            Service Providers and Aadhaar being made the only option
            of authentication; and/or”
      13. Writ Petition (C) No. 1014 of 2017 – M.G. Devasahayam and
Ors. Vs. Union of India & Anr. has been filed, where following prayers
have been made:-                                                             D

       “a) This Hon’ble Court may be pleased to issue an appropriate
           writ, order or direction declaring Rule 9 of the Prevention
           of Money Laundering Rules, 2017 as amended by the
           Prevention of Money Laundering (Second Amendment)
           Rules, 2017 as ultra vires, unconstitutional, null and void       E
           and in particular violate Articles 14, 19 and 21 of the
           Constitution of India;
       b)   This Hon’ble Court may be pleased to issue an appropriate
            writ, order or direction declaring that bank accounts will
            not be denied or ceased on the basis that he or she does not     F
            have an Aadhaar number;
       c)   This Hon’ble Court may be pleased to issue an appropriate
            writ, order or direction in the nature of mandamus against
            the Respondents directing them to forthwith forbear from
            implementing or acting pursuant to or in implementation of       G
            Rule 9 of the Prevention of Money Laundering Rules, 2017
            as amended by the Prevention of Money Laundering
            (Second Amendment) Rules, 2017;
       d)   This Hon’ble Court may be pleased to issue an appropriate
            writ, order or direction in the nature of mandamus against       H
524             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A                  the Respondents directing them to forthwith clarify by issuing
                   appropriate announcements, circulars and/or directions that
                   no citizen of India is required to obtain an Aadhaar number/
                   Aadhaar card and that the program under the Aadhaar Act
                   is entirely voluntary even for opening or maintaining the
                   bank accounts and carrying financial transactions;
B
              e)   This Hon’ble Court may be pleased to award costs relating
                   to the present petition to the petitioners; and
              f)   This Hon’ble Court may be pleased to issue any other writ/
                   order/direction in the nature of mandamus as this Hon’ble
C                  Court may deem fit an proper in the circumstances of the case.”
             14. Writ Petition (C) No. 1002 of 2017 – Dr. Kalyani Menon Sen
      Vs. Union of India and Others, 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
D     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)
E     No. 1056 of 2017 – Nachiket Udupa & Anr. Vs. Union of India & 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
F                  appropriate remedy to declare the Aadhaar (Targeted
                   Delivery of Financial and Other Subsidies, Benefits and
                   Services) Act, 2016 [ACT No. 18 of 2016] as illegal and
                   violative of Articles 14, 19(1)(a) and 21 of the Constitution
                   of India;
G             B.   In the alternative to Prayer (A), issue a Writ of
                   Declaration and Mandamus or any other appropriate
                   Writ, Direction, Order or such other appropriate remedy
                   against Respondent No. 3 to provide ‘opt-out’ or process
                   to delete identity information from Central Identities Data
                   Repository at the option of Aadhaar Number Holders;
H
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                      525
              [ASHOK BHUSHAN, J.]

   C    Issue a Writ of Declaration and Mandamus or any other        A
        appropriate Writ, Direction, Order or such other
        appropriate remedy to declare the Aadhaar (Enrolment
        and Update) Regulations, 2016 being illegal, and
        the Aadhaar Act and violative of Articles 14 and 21 of
        the Constitution of India;
                                                                     B
   D.   Issue a Writ of Declaration and Mandamus or any other
        appropriate Writ, Direction, Order or such other
        appropriate r emedy to declare the Aadhaar
        (Authentication) Regulations, 2016 as being illegal and
                   the Aadhaar Act and violative of Articles 14
        and 21 of the Constitution of India;                         C

   E.   Issue a Writ of Declaration and Mandamus or any other
        appropriate Writ, Direction, Order or such other
        appropriate remedy to declare the Aadhaar (Data
        Security) Regulations, 2016 as being illegal, and
        the Aadhaar Act and violative of Articles 14 and 21 of       D
        the Constitution of India;
   F.   Issue a Writ of Declaration and Mandamus or any other
        appropriate Writ, Direction, Order or such other
        appropriate remedy to declare the Aadhaar (Sharing of
        Information) Regulations, 2016 as being illegal, and         E
              the Aadhaar Act and violative of Articles 14 and
        21 of the Constitution of India;
   G.   Issue a Writ of Declaration and Mandamus or any other
        appropriate Writ, Direction, Order or such other
        appropriate remedy to declare the Direction issued by        F
        Respondent No. 2 on 23.03.2017 vide File No. 800-262/
        2016-AS.II, as being illegal, ultra vires the Aadhaar Act
        and violative the Articles 14, 19(1)(a) and 21, of the
        Constitution;
   H.   In the alternative to Prayer (G) above, issue a Writ of      G
        Declaration and Mandamus or any other appropriate
        Writ, Direction, Order or such other appropriate remedy
        to Respondent No. 2 to prohibit all Telecom Service
        Providers from storing, retaining, making copies or in any
        manner dealing with Aadhaar Number, biometric
                                                                     H
526                SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A                    information or any demographic information received
                     from Respondent No. 3 in the 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
B                    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
C     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.) &
      Anr. Vs. Union of India & 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.
D
              16. One Transfer Petition has also been filed by Union of India
      for transferring Writ Petition (C) No. 2764 of 2013 – Sri V. Viswanandham
      Vs. Union of India & Ors., pending in the High Court of Hyderabad. It
      is not necessary to notice various issues in the pending different writ
      petitions, which were sought to be transferred by above transfer petitions/
E     transfer cases. Issues pending in different High Courts were more or
      less same, which have been raised in leading Writ Petition (C) No. 494
      of 2012 - Justice K.S. Puttaswamy (Retd.) & Anr. Vs. Union of India &
      Ors. and other writ petitions, which were entertained and pending in this
      Court. Special Leave Petition (Crl.) No. 2524 of 2014 has been filed by
F     UIDAI and Anr. challenging the interim order dated 18.03.2014 passed
      by High Court of Bombay at Goa in Criminal Writ Petition No. 10 of
      2014 – Unique Identification Authority of India Through its Director
      General & Anr. Vs. Central Bureau of Investigation. On an application
      filed by the Central Bureau of Investigation, a Magistrate passed an
      order on 22.10.2013 directing the UIDAI to provide certain data with
G     regard to a case of a rape of seven years old child. The Bombay High
      Court at Goa passed an order dated 18.03.2014 issuing certain interim
      directions, which were challenged by UIDAI in the aforesaid special
      leave petition. This Court passed an interim order on 24.03.2014 staying
      the order passed by Bombay High Court at Goa. This Court also by the
H     interim order restrained the UIDAI to transfer any biometric information
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            527
                 [ASHOK BHUSHAN, J.]

of any person who has been allotted the Aadhaar number to any other           A
agency without his consent in writing. This special leave petition was
directed to be listed alongwith Writ Petition (C) No. 494 of 2012.
      17. This Court in Writ Petition (C) No. 494 of 2012 has issued
various Interim Orders dated 23.09.2013, 24.03.2014, 16.03.2015,
11.08.2015 and 15.10.2015.                                                    B
       18. Seven Contempt Petitions have been filed. Out of seven, five
contempt petitions have been filed alleging violation of the aforesaid
interim orders and praying for issuing proceedings against the respondents
contemnor for willful disobeying the interim orders. One Contempt
Petition (C) No. 674 of 2015 in W.P.(C) No.829 of 2013 has been filed         C
for issuing proceedings against the respondents contemnor for wilfully
disobeying the orders dated 23.09.2013, 24.03.2014 and 16.03.2015
passed by this Court. The other Contempt Petition (C) No. 34 of 2018
in W.P.(C) No. 1014 of 2017 has been filed against the respondent
contemnors for wilfully disobeying the order dated 03.11.2017 passed
by this Court in the aforesaid writ petition. All the contempt applications   D
are pending without any order of issuing notice in the contempt petitions.
      19. Writ Petition (C) No.494 of 2012 : Justice K.S. Puttaswamy
(Retd.) and another vs. Union of India and others, 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          E
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.                                                      F
              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       G
        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.”                               H
528            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A           20. By order dated 26.11.2013 all the States and Union Territories
      were impleaded as respondents to give effective directions. Interim order
      passed earlier was also continued. On 24.03.2014 following order was
      passed in SLP(Crl.) No.2524 of 2014:
                   “Issue notice.
B                   In addition to normal mode of service, dasti service, is
              permitted.
                    Operation of the impugned order shall remain stayed.
                    In the meanwhile, the present petitioner is restrained from
C             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/
D             entitled. All the authorities are directed to modify their forms/
              circulars/likes 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/
              2012.”
E
             21. This court on 16.03.2015 in Writ Petition (C) No.494 of 2012
      directed both the Union of India and the States and all their functionaries
      should adhere to the order dated 23.09.2013.
            22. A three-Judge Bench on 11.08.2015 passed an order referring
F     the matter to a Bench of appropriate strength. After reference was
      made on a prayer made by the petitioners, following interim directions
      were also passed by the Bench :
                   “Having considered the matter, we are of the view that the
              balance of interest would be best served, till the matter is finally
G             decided by a larger Bench if the Union of India or the UIDA
              proceed in the following manner:-
              1. 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;
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            529
                 [ASHOK BHUSHAN, J.]

        2. The production of an Aadhaar card will not be condition for        A
        obtaining any benefits otherwise due to a citizen;
        3. 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
        food grains, etc. and cooking fuel, such as kerosene. The Aadhaar     B
        card may also be used for the purpose of the LPG Distribution
        Scheme;
        4. The information about an individual obtained by the Unique 15
        Identification Authority of India while issuing an Aadhaar card
        shall not be used for any other purpose, save as above, except        C
        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,     D
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             E
        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      F
        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 the Aadhaar card Scheme
        is purely voluntary and it cannot be made mandatory till the matter   G
        is finally decided by this Court one way or the other.”
      24. A three-Judge Bench of this Court in its reference order dated
11.08.2015 noticed that these cases raise far-reaching questions of
importance, which involves interpretation of the Constitution. Two earlier
                                                                              H
530             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     decisions of this Court, i.e., M.P. Sharma & Others Vs. Satish Chandra
      & Others, 1954 AIR SC 300, rendered by eight Judges and another
      judgment rendered by six-Judges Bench in Kharak Singh Vs. State of
      U.P. & Others, AIR 1963 SC 1295 were noticed and it was observed
      that in the event the observations made in the above two judgments are
      to be read literally and accepted as the law of this country, the
B
      fundamental rights guaranteed under the Constitution of India and more
      particularly right to liberty under Article 21 would be denuded of vigour
      and vitality. The three-Judge Bench observed that to give quietus to the
      kind of controversy raised in this batch of cases once for all, it is better
      that the ratio decidendi of M.P. Sharma (supra) and Kharak Singh
C     (supra) is scrutinized and the jurisprudential correctness of the subsequent
      decisions of this Court where the right to privacy is either asserted or
      referred be examined and authoritatively decided by a Bench of
      appropriate strength.
            25. By order dated 18.07.2017, a Constitution Bench considered
D     it appropriate that the issue be resolved by a Bench of Nine Judge.
      Following order was passed on 18.07.2017 by a Constitution Bench:
                    “During the course of the hearing today, it seems that it has
              become essential for us to determine whether there is any
              fundamental right of privacy under the Indian Constitution. The
E             determination of this question would essentially entail whether
              the decision recorded by this Court in M.P. Sharma and Ors. vs.
              Satish Chandra, District Magistrate, Delhi and Ors. - 1950 SCR
              1077 by an eight-Judge Constitution Bench, and also, in Kharak
              Singh vs. The State of U.P. and Ors. - 1962 (1) SCR 332 by a
              six-Judge Constitution Bench, that there is no such fundamental
F             right, is the correct expression of the constitutional position.
                   Before dealing with the matter any further, we are of the
              view that the issue noticed hereinabove deserves to be placed
              before the nine-Judge Constitution Bench. List these matters
              before the Nine-Judge Constitution Bench on 19.07.2017.
G
                    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.
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            531
                 [ASHOK BHUSHAN, J.]

       27. Dr. D.Y. Chandrachud delivered opinion on his behalf as well       A
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
                                                                              B
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     C
        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         D
        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   E
        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 choices, the
        inviolability of the personality would be in doubt. Recognising a
        zone of privacy is but an acknowledgment that each individual         F
        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         G
        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    H
532    SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A     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 foundation of all liberty
      because it is in privacy that the individual can decide how liberty
B
      is best exercised. Individual dignity and privacy are inextricably
      linked in a pattern woven out of a thread of diversity into the
      fabric of a plural culture.
            298. Privacy of the individual is an essential aspect of
      dignity. Dignity has both an intrinsic and instrumental value. As
C     an intrinsic value, human dignity is an entitlement or a
      constitutionally protected interest in itself. In its instrumental facet,
      dignity and freedom are inseparably intertwined, 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
D     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
E     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
F     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 integrity of the physical aspects of personhood.
G     The intersection between one’s mental integrity and privacy
      entitles the individual to freedom of thought, the freedom to believe
      in what is right, and the freedom of self-determination. When
      these guarantees intersect with gender, they create a private
      space which protects all those elements which are crucial to
H     gender identity. The family, marriage, procreation and sexual
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              533
                 [ASHOK BHUSHAN, J.]

        orientation are all integral to the dignity of the individual. Above    A
        all, the privacy of the individual recognises an inviolable right to
        determine how freedom shall be exercised. An individual may
        perceive that the best form of expression is to remain silent.
        Silence postulates a realm of privacy. An artist finds reflection
        of the soul in a creative endeavour. A writer expresses the
                                                                                B
        outcome of a process of thought. A musician contemplates upon
        notes which musically lead to silence. The silence, which lies
        within, reflects on the ability to choose how to convey thoughts
        and ideas or interact with others. These are crucial aspects of
        personhood. The freedoms under Article 19 can be fulfilled where
        the individual is entitled to decide upon his or her preferences.       C
        Read in conjunction with Article 21, liberty enables the individual
        to have a choice of preferences on various facets of life including
        what and how one will eat, the way one will dress, the faith one
        will espouse and a myriad other matters on which autonomy and
        self-determination require a choice to be made within the privacy
                                                                                D
        of the mind. The constitutional right to the freedom of religion
        under Article 25 has implicit within it the ability to choose a faith
        and the freedom to express or not express those choices to the
        world. These are some illustrations of the manner in which
        privacy facilitates freedom and is intrinsic to the exercise of
        liberty. The Constitution does not contain a separate article telling   E
        us that privacy has been declared to be a fundamental right. Nor
        have we tagged the provisions of Part III with an alpha-suffixed
        right to privacy: this is not an act of judicial redrafting. Dignity
        cannot exist without privacy. Both reside within the inalienable
        values of life, liberty and freedom which the Constitution has
                                                                                F
        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.”
        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          G
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       H
534             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


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
B     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 judgment traced the right of
C     privacy from the judgments of this Court which were rendered for the
      last five decades. Referring to International Law on the subject, following
      observations were made by Justice D.Y. Chandradhud, J.:
                    “103...In the view of this Court, international law has to be
              construed as a part of domestic law in the absence of legislation
D             to the contrary and, perhaps more significantly, the meaning of
              constitutional guarantees must be illuminated by the content of
              international conventions to which India is a party. Consequently,
              as new cases brought new issues and problems before the Court,
              the content of the right to privacy has found elaboration in these
              diverse contexts.”
E
              31. All contours of the right of privacy having been noticed with
      all its dimensions, precautions and safeguards to be applied to protect
      fundamental rights guaranteed under the Constitution of India, we while
      proceeding to decide the issues raised herein have to proceed in the light
      of nine-Judge Constitution Bench of this Court as noticed above.
F
            32. We have been manifestly benefited by able and elaborate
      submissions raised before us by many eminent learned senior counsel
      appearing for both the parties. Learned counsel for both the parties have
      advanced their submissions with clarity, conviction and lot of persuasions.
      On occasions very passionate arguments were advanced to support the
G     respective submissions.
            33. Different aspects of the case have been taken up and advanced
      by different counsel as per understanding between them which
      enlightened the Court on varied aspects of the case. The submissions
      have been advanced on behalf of the petitioners by learned senior
H     Advocates, namely, Shri Kapil Sibal, Shri Gopal Subramanium, Shri P.
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             535
                 [ASHOK BHUSHAN, J.]

Chidambaram, Shri Shyam Divan, Shri K. V. Viswanathan, Shri Neeraj             A
Kishan Kaul, Ms. Meenakshi Arora, Shri C.U. Singh, Shri Anand Grover,
Shri Sanjay R. Hegde, Shri Arvind P. Datar, Shri V.Giri, Shri Sajan
Poovayya and Shri P.V. Surendra Nath. A large number of other counsel
also assisted us including Mr. Gopal Sankaranarayanan. On behalf of
respondents arguments were led by the learned Attorney General, Shri
                                                                               B
K.K. Venugopal. We have also heard Shri Tushar Mehta, Additional
Solicitor General, Shri Rakesh Dwivedi, learned senior counsel and Shri
Zohaib Hossain.
       34. We also permitted Dr. Ajay B. Pandey, Chief Executive
Officer, UIDAI to give a power presentation to explain actual working
of the system. After the power presentation was presented by Dr. Pandey        C
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            D
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          E
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 the Act, 2016 which challenge      F
has been substantial and elaborately raised before us.
Petitioner’s Submissions
       35. The submissions advanced by different learned counsel for
the petitioners instead of noticing individually are being noted together in
seriatim, which are as follows:-                                               G
       36. The Aadhaar project initiated by Executive notification dated
28.01.2009 as well as impugned Act, 2016 violates Article 21. The
constitutional rights of a person protected under Articles 19 and 21 of
the Constitution is violated as individuals are compelled to part with their
demographic and biometric information at the point of collection.              H
536             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     Biometric data is part of one’s body and control over one’s body lies on
      the very centre of the Right of Privacy. Decisional privacy allows individual
      to make a decision about their own body and is an aspect of right of self-
      determination. The Aadhaar Project including the Aadhaar Act violate
      the informational privacy. Data collection at the enrolment centres, the
      Data retention at Central Identities Data Repositories (CIDR), usage
B
      and sharing of data violates Right of Privacy. There is complete absence
      of safeguards at the stage of collection, retention and use of data. Act,
      2016 and Regulations framed thereunder lack safeguards to secure
      sensitive personal data of a person.
             37. The Aadhaar project including Act, 2016 creates an
C     architecture for pervasive surveillance, which again violate fundamental
      Right to Privacy. Personal data collected under the Executive scheme
      dated 28.01.2009 was without any individual’s consent. The Act, 2016
      although contemplate that enrolment under Aadhaar is voluntary but in
      actual working of the Act, it becomes defacto compulsory. The Act,
D     2016 does not pass the three-fold test as laid down by Nine Judges
      Bench in Privacy Judgment - K.S. Puttaswamy Vs. Union of India,
      (2017) 10 SCC 1, hereinafter referred to as “Puttaswamy case”. The
      Three-fold test laid down in Puttaswamy’s case are:-
              (i)   legality, which postulates the existence of law;
E             (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;
              38. It is submitted that a law to pass under Article 21 should be a
F     law according to procedure established by law. The Act, 2016 violates
      both Article 14 and Article 21 of the Constitution 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
G     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
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              537
                 [ASHOK BHUSHAN, J.]

as it enable the respondents to continually compel residents to periodically    A
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
                                                                                B
tracking, tagging and profiling of individuals through the authentication
process. Section 8 delineate a regime of surveillance, which enables
persons’ physical movements to be traced. Section 9 of the Act, 2016 is
also unconstitutional inasmuch as the Aadhaar number is de facto serving
as proof of citizenship and domicile. The provisions of Chapter IV, i.e.,
Sections 11 to 33 are ultra vires and unconstitutional. The Constitution        C
does not permit the establishment of an authority that in turn through an
invasive programme can claim every Indian citizen/resident to a central
data bank and maintain lifelong records and logs of that individual. Sections
23 and 54 of the Act, 2016 are also unconstitutional on the ground of
excessive delegation. Section 29 of the Act, 2016 is also liable to be
                                                                                D
struck down inasmuch as it permits sharing of identity information.
Section 33 is unconstitutional inasmuch as it provides for the use of the
Aadhaar data base for police investigation pursuant to an order of a
competent court. Section 33 violates the protection against self-
incrimination as enshrined under Article 20(3) of the Constitution of India.
Furthermore, Section 33 does not afford an opportunity of hearing to the        E
concerned individual whose information is sought to be released by the
UIDAI pursuant to the court’s order. This is contrary to the principles of
natural justice. Section 47 is also unconstitutional inasmuch as it does
not allow an individual citizen who finds that there is a violation of the
Act, 2016 to initiate the criminal process. Section 48, which empowers
                                                                                F
the Central Government to supersede UIDAI is vague and arbitrary.
      39. Elaborating submission with regard to Section 7, it is submitted
that Section 7 is unconstitutional and violative of Article 14 making
Aadhaar mandatory, which has no nexus with the subsidies, benefits
and services. A person cannot be forced into parting with sensitive
personal information as a condition for availing benefits or services.          G
Section 7 also falls foul of Article 14 since firstly such mandatory
authentication has caused, and continues to cause, exclusion of the most
marginalised sections 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, i.e. the use of biometric            H
538             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     authentication as the primary method 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.
B            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
C     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
D     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 consent amounts to deprivation
      of the intimate personal information of an individual violating the
      fundamental Right of Privacy. All steps taken under the notification
E     dated 28.01.2009 were not backed by any law, hence unconstitutional
      and clearly violate Article 21, which cannot be cured in a manner as
      Section 59 pretend to do.
            42. The Act is unconstitutional since it collects the identify
      information of children between five to eighteen years without parental
F     consent. The Aadhaar architecture adopts foreign technologies, on which
      UIDAI does not have any control, exposing data leak endangering life
      of people and security of nation.
             43. Rule 9 as amended by PMLA Rules, 2017 is unconstitutional
      being violative of Articles 14, 19(1)(g), 21 and 300A of the Constitution
G     of India. Rule 9 also violates Sections 3, 7 and 51 of the Act, 2016 and
      ultra vires to the provisions of PMLA Act, 2002.
             44. Section 139AA of the Income Tax Act, 1961 is liable to be
      struck down as violative of Articles 14, 19(1)(g) and 21 of the Constitution
      in view of Privacy Judgment – Puttaswamy (supra).
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             539
                 [ASHOK BHUSHAN, J.]

       45. The Mobile Linking Circular dated 23.03.2017 issued by              A
Ministry of Communications, Department of Telecommunications is ultra
vires.
       46. The Aadhaar Act, 2016 has wrongly been passed as a Money
Bill. The Aadhaar Act, 2016 is not a Money Bill. The Speaker of Lok
Sabha wrongly certified the bill as a Money Bill under Article 110 of the      B
Constitution of India virtually excluding the Rajya Sabha from legislative
process and depriving the Hon’ble President of his power of return.
Clauses 23(2)(g), Section 54(2)(m) and Section 57 of The Aadhaar
(Targeted Delivery of Financial and Other Subsidies, Benefits and
Services) Bill, 2016 and the corresponding Sections of the Act, 2016 as
notified clearly do not fall under any of the Clauses of Article 110 of the    C
Constitution. The Act of Speaker certifying the bill as a Money Bill is
clearly violation of constitutional provisions. Judicial Review of decision
of Speaker certifying it as Money Bill is permissible on the ground of
illegality. The Aadhaar Bill being not a money bill and having been passed
by Parliament as a Money Bill, this ground alone is sufficient to strike       D
down the entire Act, 2016.
      47. Learned Attorney General replying the above submissions of
the counsel for the petitioners submits:-
       48. In the Privacy Judgment P.S. Puttaswamy case (supra) all
nine Judges uniformly agreed that privacy is a fundamental right traceable     E
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        F
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
                                                                               G
      (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
                                                                               H
540             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     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. After enactment of Act, 2016, the first
      condition in regard to the existence of a law stands satisfied. The Act
      requires only the bare demographic particulars, while eschewing most
B
      other demographic particulars. The Act further contains adequate
      safeguards for protection of information and preventing abuse through a
      catena of offences and penalties. The provisions of Act ensure that the
      law is a just, fair and reasonable and not fanciful, oppressive or arbitrary.
             50. The legitimate State interest or a larger public interest
C     permeates through the Act, 2016 which is clearly indicated by the
      following:
              A.    Preventing the dissipation of subsidies and social welfare
                    benefits which is covered by Section 7 of the Aadhaar Act;
D             B.    Prevention of black money and money laundering by
                    imposing a requirement by law for linking Aadhaar for
                    opening bank accounts;
              C.    To prevent income tax evasion by requiring, through an
                    amendment to the Income Tax Act, that the Aadhaar
E                   number be linked with the PAN; and
              D.    To prevent terrorism and protect national security by
                    requiring that Aadhaar be linked to SIM cards for mobile
                    phones.”
             51. The Aadhaar Act, 2016 was enacted with prolonged
F     deliberations and study. The petitioners have failed to establish any
      arbitrariness in the Act. The right to life under Article 21 is not the right
      to a mere animal existence, but the right to live with human dignity which
      would include the right to food, the right to shelter, the right to employment,
      the right to medical care, education etc. If these rights are juxtaposed
      against the right to privacy, the former will and prevail over the latter. In
G
      so far as implementation of Aadhaar project prior to coming into force
      of Act, 2016, since obtaining an Aadhaar number or an enrolment number
      was voluntary, especially because of the interim orders passed by this
      Court, no issue of violation of any right, leave alone a fundamental right,
      could arise. The judgments of this Court in M.P. Sharma and Kharak
H     Singh (supra) being those of eight Judges and six Judges respectively,
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            541
                 [ASHOK BHUSHAN, J.]

holding that the right to privacy is not a fundamental right, the judgments   A
of smaller benches delivered during the period upto 2016 would be per
incuriam, as a result of which the State need not to 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 Executive instructions
issued for this purpose would be valid as well as the receipt of benefits
                                                                              B
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     C
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       D
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.                              E
       54. Section 57, which has been attacked as being untraceable to
any of the sub-clauses of (a) to (f) of Article 110 cannot be looked at in
isolation. The Bill in its pith and substance should pass the test of being
a Money Bill and not isolated provisions.
       55. Learned Additional Solicitor General of India, Shri Tushar         F
Mehta, also advanced submissions on few aspects of the matter. On
Section 139AA of Income Tax Act, 1961 it is submitted that petitioners
can succeed only when they demonstrate that Section 139AA is violative
of right to privacy on the following tests as laid down by nine-Judge
Constitution Bench in Puttaswamy case:                                        G
        (i)   absence of a law;
        (ii) absence of legitimate State interest”
        (iii) provisions being hit by lack of proportionality;
        (iv) the provisions being manifestly arbitrary.                       H
542             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A            56. It is submitted that two-Judge Bench judgment of this Court
      in Binoy Biswam Vs. Union of India and others, (2017) 7 SCC 59,
      had upheld the vires of Section 139AA subject to issue of privacy which
      at that point of time was pending consideration. It is further submitted
      that provision pertaining to Permanent Account Number (PAN) was
      inserted in the Income Tax Act by Section 139A with effect from
B
      01.04.1989 which obliged every person to quote PAN for different
      purposes as enumerated in Section 139A. The Petitioners or anyone
      else never felt aggrieved by requirement of getting PAN under Section
      139A and Parliament on considering the legitimate State interest has
      introduced Section 139AA which is only an extension of Section 139A
C     which requires linking of PAN with Aadhaar number.
              57. The Income Tax Act was amended by the Parliament by
      inserting Section 139AA in the legitimate State interest and in larger
      public interest. The object of linking was to remove bogus PAN cards
      by linking with Aadhaar, expose shell companies and thereby curb the
D     menace of black money, money laundering and tax evasion. Problem of
      multiple PAN cards to same individuals and PAN cards in the name of
      fictitious individuals are common medium of money laundering, tax
      evasion, creation and channeling of black money.
             58. Linking of Aadhaar with PAN is consistent with India’s
E     international obligations and Goals. India has signed the Inter-
      Governmental Agreement (IGA) with the USA on July, 9, 2015, for
      improving International Tax Compliance and implementing the Foreign
      Account Tax Compliance Act. It is submitted 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
F     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
G     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
H     the Court that the statute is unconstitutional, the presumption will be
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            543
                 [ASHOK BHUSHAN, J.]

there that statute is constitutional. Shri Mehta has further submitted that   A
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 139A fully satisfies the aforesaid test of
proportionality.                                                              B
        61. Additional Solicitor General in support of Prevention of
Money-laundering (Maintenance of Records) Second Amendment Rules,
2017 submits that the State has sought to make the provisions of PMLA
more robust and ensure that the ultimate object of the Act is achieved.
The Amendment Rules, 2017 place an obligation on part of the reporting        C
entity to seek the details with regard to Aadhaar number of every client.
It is submitted that the said Rules have to be read in consonance with
the object of the PMLA and the principles of “beneficial owner” behind
the corporate veil of shell companies, etc. It is submitted that the PMLA
empowers the State to utilise the uniqueness of Aadhaar in order to
tackle the problem of money laundering. It is submitted that the PMLA         D
Act, with a clear emphasis on the investigation of the biological persons
behind the corporate entities, establishes a mechanism wherein receiving
benefits through benami or shell companies through related/connected
Directors, fictitious persons or other personnel is eliminated.
        62. Section 139AA and PMLA Rules amended in 2017 are co-              E
ordinated in their operation. The PMLA Rules are not ultra vires. Mr.
Mehta has also referred to international Conventions declaring money
laundering to be a very serious offence. He submits that Prevention of
Money Laundering Act, 2002 was enacted in the context of concrete
international efforts to tackle the menace of money laundering. Shri Mehta    F
has also emphasised on the necessity of verification of bank accounts
with Aadhaar number. He submits that the verification of bank account
by way of Aadhaar is done for the reason that often bank accounts are
opened in either fictitious names or in the name of wrong persons on the
basis of forged identity documents and financial crimes are committed.
It is seen that accommodation entries are mostly provided through the         G
banking channels by bogus companies to convert black money into white.
Benami transactions routinely take place through banking channels. All
of the above, can to a large extent be checked by verifying Aadhaar
with bank accounts to ensure that the account belongs to the person
who claims to be the account holder and that he or she is a genuine           H
544             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     person. Verification of bank account with Aadhaar also ensures that the
      direct benefit transfer of subsidies reach 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.
B
             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
C     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.
D            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 is associated over matters
      which can be kept private. These are concerns over which there is a
E     reasonable expectation of privacy. The reasonable expectation involves
      two aspects. Firstly, the individual or individuals claiming a right to privacy
      must establish that their claim involves a concern about some harm likely
      to be inflicted upon them on account of the alleged act. This concern
      should be real and not imaginary or speculative. Secondly, the concern
      should not be inflated.
F
             65. The Act, 2016 operates in the relational sphere and not in the
      core, private or personal sphere of residents. It involves minimal identity
      information for effective authentication. The purpose is limited to
      authenticate for identification. The Act operates in a public sphere.
      Section 29 of the Aadhaar Act, 2016 provides protection against disclosure
G     of identity information without the prior consent of the Aadhaar Number
      holder concerned. Sharing is intended only for authentication purposes.
            66. It is submitted that by their very nature the demographic
      information and photograph sought to be collected cannot be said to be
      of such a nature as would make it a part of a reasonable expectation
H     paradigm. Today, globally all ID cards and passports contain photographs
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              545
                 [ASHOK BHUSHAN, J.]

for identification along with address, date of birth, gender etc. The           A
demographic information is readily provided by individuals globally for
disclosing identity while relating with others; while seeking benefits
whether provided by government or by private entities. People who get
registered for engaging in a profession, who take admissions in Schools/
Colleges/university, who seek employment in the government or private
                                                                                B
concerns and those who engage in various trade and commerce are all
required to provide demographic information and even photographs. There
is no expectation of privacy in providing those information for the above
purposes.
       67. There are lot of enactments which require disclosure of
demographic information comprising name, address, email address etc.,           C
for example Central Motor Vehicle Rules, 1989, Companies Act, 2013,
Special Marriage Act, The Registration of Electoral Rules, 1960, The
Citizenship (Registration of Citizens and Issue of National Identity Cards)
Rules, 2009 and the Passports Act. However, there are certain special
contexts in which non-disclosure of demographic information could be            D
considered 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.
                                                                                E
       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       F
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                   G
biometric attendance is increasing day by day both in public and private
sector. Thus, requirement of fingerprints and iris scan would not attract
the fundamental right of privacy. The fingerprint and iris scan have been
considered to be most accurate and non-invasive mode of identifying an
individual.                                                                     H
546             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A            70. The information collected under the Act, 2016 does not involve
      processing for economic and sociological purposes. Further, in the data
      center de-duplication process is based on anonymization and what is
      stored in the servers for authentication process are simply templates
      and encrypted information of Aadhaar number and demographics. The
      identity data collected is stored offline. There is no internet connectivity.
B
      Thus, there is more than a reasonable security protection under the Act.
            71. The rationale of Section 7 lies in ensuring targeted delivery of
      services, benefits and subsidies which are funded from the Consolidated
      Fund of India. In discharge of its solemn Constitutional obligation to
      enliven the Fundamental Rights of life and personal liberty and to eliminate
C     inequality with a view to ameliorate the lot of the poor and the Dalits, the
      Central Government has launched several welfare schemes. Some of
      such schemes are PDS, scholarship, mid day meals, LPG subsidies, free
      education, etc.
             72. The requirement to undergo authentication on the basis of
D     Aadhaar number is made mandatory by Section 7. This requirement is
      only for “undertaking authentication”. However, if authentication fails,
      despite more than one attempt then the possession of Aadhaar number
      can be proved otherwise, i.e., by producing the Aadhaar card, and those
      who do not have Aadhaar number can make an application for enrolment
E     and produce the enrolment id number (EID). This takes care of non-
      exclusion.
             73. Aadhaar Act truly seeks to secure to the poor and deprived
      persons an opportunity to live their life and exercise their liberty. By
      ensuring targeted delivery through digital identification, it not only provides
F     them a nationally recognised identity but also attempts to ensure the
      delivery of benefits, service and subsidies with the aid of public exchequer/
      Consolidated Fund of India. And it does so without impacting the
      Fundamental Right to Privacy of the Indians or at best minimally impacting
      it with adequate safeguards.

G            74. Regarding the numerization or numericalization of individual
      argument, it is submitted that the Aadhaar number does not convert the
      human being into a number. The objective 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
H     Aadhaar number automatically and matches identity information with
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                547
                 [ASHOK BHUSHAN, J.]

the encrypted information in the template. This Aadhaar number is,                A
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
                                                                                  B
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      C
requiring submission of Aadhaar number to CIDR for verification. Further,
Section 4(2) provides that the Aadhaar number shall be a random number
and shall bear no relation to the attributes or identity of the Aadhaar
number holder. It is proof of identity and not identity itself.
        75. Replying the submission of the petitioners that fundamental           D
right of privacy/dignity/autonomy under Article 21 could not be waived.
It is submitted that Section 7 of Aadhaar Act does not involve any issue
of waiver. When an individual undergoes any authentication to establish
his identity to receive benefits, services or subsidies, he does so to enliven
his fundamental right to life and personal liberty under Article 21.
                                                                                  E
       76. With regard to Section 57, it is submitted that since an
infrastructure for establishing identity of residents is available, therefore,
Parliament intends to make the use of Aadhaar number available for
other purposes provided the need for the service of authentication arises
pursuant to any law or contract. The rationale seems to be that due to
liberalisation and privatisation in many governmental and public sector           F
zones, private corporate bodies are operating in parallel and in competition
with public sector – banking, insurance, defence, health etc. These are
vital core sectors absolutely essential for National integrity, National
economy and life of people. In many areas private bodies operate under
common regulators such as TRAI, Airport Authority, IRDA etc. Then                 G
there is rapidly growing e-commerce.
      77. In Reply to the submission of Shri Kapil Sibal that the real
object of the Act was to provide data to the digital giants like Google,
Facebook and other private players, it is contended that there is no factual
foundation for this submission in any writ petition. In the Act there is a        H
548             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     complete bar with respect to sharing of core biometric information vide
      Section 29(1). The non-core biometric information is to be shared only
      as per the provisions of the Act and Regulations and with prior consent
      and only for the purpose of authentication.
              78. On the submission of the petitioners that power of UIDAI to
B     add identity information by Regulation is unguided and violative of Article
      14, it is submitted that clauses (g) and (j) of Section 2 use the expression
      ‘such other biological attribute’. This general expression needs to be
      construed by applying the doctrine of ejusdem generis. The use of word
      ‘such’ implies similarity with what is specifically mentioned before the
      general expression. The Regulations framed by UIDAI are required to
C     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
D     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
E     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
F     most of the identity documents do not enjoy the quality of portability.
      They also do not lend assurance and accuracy on account of existence
      of fake, bogus and ghost cards. Therefore, there was need of a biometric
      Aadhaar number which enables de-duplication and authentication.
              81. Shri Dwivedi submits that security and data privacy is ensured
G     in the following manner:-
              (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
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             549
                 [ASHOK BHUSHAN, J.]

             mapped back to the correct enrolment number by the                A
             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             B
              (source). They only store template for the purposes 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.                         C

        (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 over               D
             99.86%. The mixed biometric have been adopted only to
             enhance the accuracy and to reduce the errors which may
             arise on account of some residents either not having
             biometrics or not having some particular biometric.
       82. Biometrics are being used for unique identification in e-
                                                                               E
passports by 120 countries. Out of these many countries use fingerprints
and/or iris scans. Additionally 19 European Countries have smart National
Identity cards having chips containing biometric information. A number
of African and Asian countries are also using biometrics for identification.
The ECHR and ECJ have not declared the use of biometrics or the
collection and storage of data for the said purpose to be violative of         F
Human Rights. It has infact been upheld in the context of passports, by
the ECJ.
       83. On the submissions that de-duplication/ authentication software
has been received from three foreign suppliers and since the source
code of the algorithm is with the foreign suppliers, therefore, they can       G
easily obtain the data in the CIDR merely by manipulation 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
                                                                               H
550            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     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.
B            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.
C
             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 Aadhaar (Sharing of Information)
      Regulations, 2016. Referring to various Regulations of the above
      Regulations. Shri Dwivedi submitted that the architecture of Aadhaar
D     and its functioning does not permit CIDR to note about parties of any
      transaction or location of the individual seeking identification of his
      Aadhaar number. Requesting Agency is strictly restricted to sharing of
      only demographic information plus photograph and for authentication
      only, and this is also with express and separate prior consent of the
E     ANH. Requesting Entities cannot share authentication logs with any
      person other than the ANH or for grievance redressal and resolution of
      disputes or with the Authority for audit and shall not be used for any
      purpose other than stated in Regulation 18(5).
             86. Elaborating on security Shri Dwivedi submitted that Section
F     28(4) mandates that the UIDAI shall ensure that the agencies appointed
      by it have in place the appropriate technical and organizational security
      measures for the information and ensure that the agreements or
      arrangements entered into with such agencies impose obligations
      equivalent to those imposed on the Authority and require such agencies
      to act only on instructions from the Authority.
G
            87. RE shall ensure that the identity information of the ANH or
      any other information generated during the authentication is kept
      confidential, secure and protected against access, use and disclosure
      not permitted under the Act and regulations.[Regulation 17(1)(e)]. The
      private key used for digitally signing the authentication request and the
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                551
                 [ASHOK BHUSHAN, J.]

license keys are kept secure and access controlled[Regulation 17(1)(f)            A
and 22(3)]. All relevant laws and regulations in relation to data storage
and data protection relating to Aadhaar based identity information in
their systems, that of their agents and with authentication devices are
compiled with [Regulation 17(1)(g)].
      88. Regulation 22(4) provides that RE shall adhere to all regulations,      B
information security policies, processes, standards, specifications and
guidelines issued from time to time.
       89. By virtue of Section 56 and 61 of the Aadhaar Act, 2016, the
provisions of IT Act, 2000 are applicable except where it is inconsistent
with Aadhaar Act. The regular regime under the IT Act with all its                C
provisions for punishment and penalty are attracted since the biometric
information is an electronic record and 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                D
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   E
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       F
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 used for the purpose
of authentication are not geared or designed to record the nature of the
activity being done by the ANH which necessitates authentication. The             G
device can only tell the authority about the time of authentication, the
identity of the RE, the PID, the time and nature of response, the code of
the device and the authentication server side configurations. Hence, with
the aid of authentication record it is not possible for the UIDAI to track
the nature of activity being engaged into by the ANH. In fact, in
overwhelming majority of cases the authentication record would not                H
552            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     enable the authority to know even the place/location where the activity
      is performed by the ANH. The reason is that there are about 350 number
      of REs. The REs alone can authenticate with the help of CIDR and this
      is done by them through the ASA. In a large number of cases, the
      organizations requiring authentication would be doing so through some
      RE with whom they have some agreements. To illustrate nic.in is an RE
B
      which provides authentication service to large number of government
      organizations who have agreements with it. The authentication record
      would only contain information about the identity about the RE. It will
      give information only about the RE(nic.in) and not about the organization
      which is requiring authentication through the RE. In most cases the
C     authentication is one time.
              92. It is submitted that biometrics is being increasingly resorted
      to for identification purposes by many countries. At least 19 countries in
      Europe are using biometric smart cards where data is stored in the chip.
      These smart cards are similar to the smart cards which were used under
D     the 2006 Act in U.K. The important difference lies in the extent of data
      of the individual which is stored in the smart card. The European cards
      unlike the UK, do not store 50 categories of data which was being stored
      in the UK card that came to be abolished in 2010 by the Repealing Act,
      2010. In some European countries the smart cards are issued in a
      decentralized manner, as in Germany. But in some other countries the
E     smart cards are issued in a centralized manner. In either case, the State
      is possessed of all the information which is stored in the chip of the
      smart card, though it may not involve authentication. These smart cards
      are considered to be property of the State and the State can require the
      production of the smart card for identification at any time. Estonia is
F     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
G     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
H     and political for the little Indians.
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              553
                 [ASHOK BHUSHAN, J.]

       94. Responding on the arguments raised by the petitioner on              A
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 authentication
exercise is so vast and that any breach can be handled with efficiency
                                                                                B
and effectively only by UIDAI. There are similar enactments which
contain similar provisions which have been upheld by this Court. An
individual can make a complaint to UIDAI directly or through grievance
redressal cell. The authority would be obliged to examine the complaints
and to lodge the complaint in the Court as per Section 47. Additionally,
the individual is generally likely to have a complaint of identity theft,       C
cheating or disclosure. In such a situation he can always invoke the
provisions of Sections 66C, 66D and 72A of the IT Act, 2000. The said
offences carry identical penalties.
       95. Elaborating on Section 59 of the Act, it is submitted that Section
59 purports to provide a statutory basis to the resolution of the Government    D
of India, Planning Commission dated 28.01.2009 and also to validate
anything done or any action taken by the Central Government under the
said resolution. Section 59 of the Aadhaar Act seeks to continue what
was done and the actions which were taken under the Resolution dated
28.01.2009. Section 59 is clearly extending its protection retrospectively
to that which was done under the notification dated 28.01.2009.                 E

       96. Section 59 provides a deemed fiction. As a result of this deemed
fiction one has to imagine that all the actions taken under the aforesaid
notifications were done under the Act and not under the aforesaid
notifications.
                                                                                F
       97. Replying the submission of the petitioner that large scale of
marginal section of the society is deprived due to exclusion from getting
the benefits and the Act violates Article 14 of the Constitution, it is
submitted that there is no exclusion on account of de-duplication. It cannot
be denied that there may be some cases where due to non-identification,
a person may have been put to some dis-advantage but on failure of              G
authentication the authorities have clear discretion to accept other means
of identification to deliver the subsidies and benefits. In any view of the
matter on some administrative lapses and some mistakes in
implementation does not lead to conclude that Act is unconstitutional
                                                                                H
554            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     and wrong implementation of the Act does not effect the constitutionality
      of the statutes.
           98. Learned counsel for the parties have placed reliance on several
      judgments of this Court and Foreign Courts in support of their respective
      submissions which we shall notice while considering the respective
B     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
C     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:-

D
             (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
E
                 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 ?
F            (4) Whether Aadhaar Act creates an architecture for pervasive
                 surveillance amounting to violation of fundamental right of
                 privacy ?
             (5) Whether the Aadhaar Act provides protection and safety
                 of the data collected and received from individual ?
G            (6) Whether Section 7 of Aadhaar Act is unconstitutional since
                 it requires that for purposes of establishment of identity of
                 an individual for receipt of a subsidy, benefit or service such
                 individual should undergo authentication or furnish proof of
                 possession of Aadhaar number or satisfy that such person
H
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                         555
              [ASHOK BHUSHAN, J.]

        has made an application for enrolment ? Further the             A
        provision deserves to be struck down on account of large
        number of denial of rightful claims of various marginalised
        section of society and down trodden?
   (7) Can the State while enlivening right to food, right to shelter
       etc. envisaged under Article 21 encroach upon the rights of      B
       privacy of the beneficiaries ?
   (8) Whether Section 29 of the Aadhaar Act is liable to be struck
       down inasmuch as it permits sharing of identity information ?
   (9) Whether Section 33 is unconstitutional inasmuch as it
       provides for the use of Aadhaar data base for Police             C
       investigation, which violates the protection against self-
       incrimination as enshrined under Article 20(3) of the
       Constitution of India ?
   (10) Whether Section 47 of Aadhaar Act is unconstitutional
        inasmuch as it does not allow an individual who finds that      D
        there is a violation of Aadhaar Act to initiate a criminal
        process ?
   (11) Whether Section 57 of Aadhaar Act which allows an
        unrestricted extension of Aadhaar information of an
        individual for any purpose whether by the State or any body,    E
        corporate or person pursuant to any law or contact is
        unconstitutional ?
   (12) Whether Section 59 is capable of validating all actions taken
        by the Central Government under notification dated
        28.01.2009 or under notification dated 12.09.2015 and all       F
        such actions can be deemed to be taken under the Aadhaar
        Act?
   (13) Whether Aadhaar Act is unconstitutional since it collects
        the identity information of children between 5 to 18 years
        without parental consent ?                                      G
   (14) Whether Rule 9 as amended by PMLA (Second
        Amendment) Rules, 2017 is unconstitutional being violative
        of Article 14, 19(1)(g), 21 and 300A of Constitution of India
        and Section 3,7, 51 of Aadhaar Act. Further, whether Rule
        9 is ultra vires to the PMLA Act, 2002. itself.                 H
556            SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A            (15) Whether circular dated 23.02.2017 issued by the
                  Department of Telecommunications, 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
B                 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
C                 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?
         Issues Nos. 1 and 2    Whether requirement under Aadhaar
D                               Act to give one’s demographic and
                                biometric information is violative of
                                fundamental right of privacy ?
                                AndWhether the provisions of Aadhaar
                                Act    requiring   demographic     and
                                biometric information from a resident
E                               for      Aadhaar      number       are
                                unconstitutional and do not pass three
                                fold test as laid down in Puttaswamy
                                case?


F           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 Legislation came into existence.
      Paragraph 5 of the Statement of Objects and Reasons is as follows:
             “5. The Aadhaar (Targeted Delivery of Financial and Other
G
             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;
H
            JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             557
                          [ASHOK BHUSHAN, J.]

                   (b) requiring Aadhaar numbers for identifying an individual for      A
                   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;     B
                   (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 individuals in       C
                   the Central Identities Data Repository in such manner as may
                   be specified by regulations;
                   (f) measures pertaining to security, privacy and confidentiality
                   of information in possession or control of the Authority including
 dhaar             information stored in the Central Identities Data Repository;
c and              and                                                                  D
 ve of             (g) offences and penalties for contravention of relevant
cy ?
                   statutory provisions.”
 dhaar
    and        102. Preamble to any Act is a key to read and unfold an enactment.
 sident   The Preamble of Aadhaar Act reads:
    are                                                                                 E
                 “An Act to provide for, as a good governance, efficient,
  three
swamy            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.”                    F

               103. Section 2 of the Act is definition clause. Section 2(a) defines
          “Aadhaar number” in the following manner:
                 “2(a) “Aadhaar number” means an identification number issued
                 to an individual under sub-section (3) of section 3;”                  G
               104. Sections 2(g) and 2(k) define “biometric information” and
          “demographic information” which is to the following effect:
                 “2(g) “biometric information” means photograph, finger print,
                 Iris scan, or such other biological attributes of an individual as
                 may be specified by regulations;                                       H
558            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A             (k) “demographic information” includes information relating 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;
B
              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
C             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
D             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
E
                (c) the existence of a right to access information, the procedure
                for making requests for such access, and details of the person
                or department in-charge to whom such requests can be made.
              (3) On receipt of the demographic information and biometric
              information under sub-section (1), the Authority shall, after
F
              verifying the information, in such manner as may be specified by
              regulations, issue an Aadhaar number to such individual.”
             106. The challenge in this batch of cases is challenge to the Act
      and its various provisions on the ground that the Act and its provisions
      violate right of privacy which is now recognised as fundamental right.
G     All aspects of privacy right, which is accepted as a fundamental right
      under Article 21, have been elaborately and authoritatively dealt by nine-
      Judge Constitution Bench of this Court in Puttaswamy case (supra).
           107. Alan F. Westin in his work “Privacy and Freedom” defined
      privacy as “the desire of people to choose freely under what
H
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             559
                [ASHOK BHUSHAN, J.]

circumstances and to what extent they will expose themselves, their           A
attitudes and their behaviour to others”.
      108. Dr. D.Y. Chandrachud, J., in his opinion (which expresses
majority opinion) in paragraph 3 of the judgment while analysing the
concept of privacy held:
       “3. Privacy, in its simplest sense, allows each human being to be      B
       left alone in a core which is inviolable. Yet the autonomy of the
       individual is conditioned by her relationships with the rest of
       society. Those relationships may and do often pose questions to
       autonomy and free choice. The overarching presence of State
       and non-State entities regulates aspects of social existence which     C
       bear upon the freedom of the individual. The preservation of
       constitutional liberty is, so to speak, work in progress. Challenges
       have to be addressed to existing problems. Equally, new
       challenges have to be dealt with in terms of a constitutional
       understanding of where liberty places an individual in the context
       of a social order. The emergence of new challenges is exemplified      D
       by this case, where the debate on privacy is being analysed in
       the context of a global information based society. In an age where
       information technology governs virtually every aspect of our lives,
       the task before the Court is to impart constitutional meaning to
       individual liberty in an interconnected world. While we revisit        E
       the question whether our Constitution protects privacy as an
       elemental principle, the Court has to be sensitive to the needs of
       and the opportunities and dangers posed to liberty in a digital
       world.”
      109. Dwelling on essential nature of privacy in paragraphs 297          F
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   G
       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         H
560    SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     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.
B
      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....
C     298. Privacy of the individual is an essential aspect of dignity.
      Dignity has both an intrinsic and instrumental value. As an intrinsic
      value, human dignity is an entitlement or a constitutionally
      protected interest in itself. In its instrumental facet, dignity and
      freedom are inseparably intertwined, each being a facilitative
D     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
E     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
F     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.
G     Privacy of the body entitles an individual to the integrity of the
      physical aspects of personhood. The intersection between one’s
      mental integrity and privacy entitles the individual to freedom of
      thought, the freedom to believe in           what is right, and the
      freedom of self-determination. When these guarantees intersect
H     with gender, they create a private space which protects all those
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                561
                 [ASHOK BHUSHAN, J.]

        elements which are crucial to gender identity. The family, marriage,      A
        procreation and sexual orientation are all integral to the dignity
        of the individual. Above all, the privacy of the individual recognises
        an inviolable right to determine how freedom shall be exercised.”
      110. This Court has further held that like the right to life and liberty,
privacy is not absolute. Any curtailment or deprivation of that right             B
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                 C
        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             D
        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:
                                                                                  E
        “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
        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.                 F
        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      G
        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
                                                                                  H
562             SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A             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.
              326. Privacy has both positive and negative content. The negative
B             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.”
             112. The first issue which is under consideration is as to whether
C     requirement under the Aadhaar Act to give one’s biometric and
      demographic information is violative of fundamental right of privacy.
      Demographic and biometric information has been defined in Section 2
      as noted above. Biometric information and demographic information are
      two distinct concepts as delineated in the Act itself. We first take up the
      demographic information which includes information relating to the name,
D     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. There is also injunction in Section 2(k) that demographic
      information shall not include race, religion, caste, tribe, ethnicity, language,
      records of entitlement, income or medical history. Thus, demographic
E     information which are contemplated to be given in the Act are very
      limited information. The Regulations have been framed under Act, namely,
      Aadhaar (Enrolment and Update) Regulations, 2016. Regulation 4
      enumerates demographic information which shall be collected from
      individuals undergoing enrolment. Regulation 4 is as follows:

F             “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;
G                 (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
H             undergoing enrolment:
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             563
                 [ASHOK BHUSHAN, J.]

           (i)    Mobile number;                                               A
           (ii)   Email address.
        (3) In case of Introducer-based enrolment, the following additional
        information shall be collected:
           (i)    Introducer name;
                                                                               B
           (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;                                                  C
           (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.              D
        (6) The demographic information shall not include race, religion,
        caste, tribe, ethnicity, language, record of entitlement, income or
        medical history of the resident.”
       113. A perusal of Regulation 4 indicates that information which
                                                                               E
shall be collected from individual are his name, date of birth, gender and
residential address. The additional information which can be collected at
the option of the individual is mobile number and e-mail address. Schedule I
of the Regulation contains format of enrolment form which contains
columns for information as contemplated under Regulation 4.
       114. The information contemplated under Regulation 4 are nothing        F
but information relating to identity of the person.
       115. Every person born on earth takes birth at a place at a time
with a parentage. In the society person is identified as a person born as
son or daughter of such and such. The identity of person from the time
of taking birth is an identity well known and generally every person           G
describes himself or herself to be son or daughter of such and such
person.
     116. Every person, may be a child in school, a person at his
workplace, relates himself or herself with his or her parent’s, place of
                                                                               H
564             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     birth etc., in interaction with his near and dear and outside world a person
      willingly and voluntarily reveals his identity to others in his journey of
      life. The demographic information are readily provided by individuals
      globally for disclosing identity while relating with others; while seeking
      benefits whether provided by government or by private entities. People
      who get registered for engaging in a profession, who take admissions in
B
      schools/colleges/ university, who seek employment in the government or
      private concerns, and those who engage in various trade and commerce
      are all required to provide demographic information. Hence, it can be
      safely said that there cannot be a reasonable expectation of privacy
      with regard to such information. There are large number of statutes
C     which provide for giving demographic information by the individuals.
      For inclusion of name of a person in the Electoral List as per the
      Registration of Electoral Rules, 1960 framed under the Representation
      of People Act, 1950, a person is required to give similar demographic
      information in Form II, i.e., name, date of birth, gender, current address
      and permanent address, which also contains optional particulars of email
D
      address and mobile number. Under Central 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,
E     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
F     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
G             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 that this core
              right protected by Article 8, however protean, should not be read
H             so widely that its claims become unreal and unreasonable. For
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                565
              [ASHOK BHUSHAN, J.]

   this purpose I think there are three safeguards, or qualifications.         A
   First, the alleged threat or assault to the individual’s personal
   autonomy must (if Article 8 is to be engaged) attain “a certain
   level of seriousness”. Secondly, the touchstone for Article 8(1)’s
   engagement is whether the claimant enjoys on the facts a
   “reasonable expectation of privacy” (in any of the senses of
                                                                               B
   privacy accepted in the cases). Absent such an expectation, there
   is no relevant interference with personal autonomy. Thirdly, the
   breadth of Article 8(1) may in many instances be greatly curtailed
   by the scope of the justifications available to the State pursuant
   to Article 8(2). I shall say a little in turn about these three antidotes
   to the overblown use of Article 8.                                          C
   24. As for the second - a “reasonable expectation of privacy” -
   I have already cited paragraph 51 of Von Hannover, with its
   reference to that very phrase, and also to a “legitimate
   expectation” of protection. One may compare a passage in Lord
   Nicholls’ opinion in Campbell at paragraph 21:                              D
     “Accordingly, in deciding what was the ambit of an individual’s
     ‘private life’ in particular circumstances courts need to be on
     guard against using as a touchstone a test which brings into
     account considerations which should more properly be
     considered at the later stage of proportionality. Essentially the         E
     touchstone of private life is whether in respect of the disclosed
     facts the person in question had a reasonable expectation of
     privacy.”
   In the same case Lord Hope said at paragraph 99:
     “The question is what a reasonable person of ordinary                     F
     sensibilities would feel if she was placed in the same position
     as the claimant and faced with the same publicity.”
   In Murray v Big Pictures (UK) Ltd Sir Anthony Clarke MR
   referred to both of these passages, and stated:
                                                                               G
     “35... [S]o far as the relevant principles to be derived from
     Campbell are concerned, they can we think be summarised in
     this way. The first question is whether there is a reasonable
     expectation of privacy. This is of course an objective question. ...
     36. As we see it, the question whether there is a reasonable
     expectation of privacy is a broad one, which takes account of             H
566            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A              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 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
B
               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
C     (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 Katz66
D              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 individual’s
               subjective expectation of privacy is “one that society is prepared
E              to recognize as “reasonable” “ … whether … the individual’s
               expectation, viewed objectively, is “justifiable” under the
               circumstances. …
               8. … Since the pen register was installed on telephone company
               property at the telephone company’s central offices, petitioner
F              obviously cannot claim that his “property” was invaded or that
               police intruded into a “constitutionally protected area”.”
             Thus the Court held that the petitioner in all probability entertained
             no actual expectation of privacy in the phone numbers he dialed,
             and that, even if he did, his expectation was not “legitimate”.
G            However, the judgment also noted the limitations of the Katz
             test:
               “Situations can be imagined, of course, in which Katz66
               two-pronged inquiry would provide an inadequate index
               of Fourth Amendment protection. … In such circumstances,
H              where an individual’s subjective expectations had been
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            567
                 [ASHOK BHUSHAN, J.]

          “conditioned” by influences alien to well-recognised Fourth         A
          Amendment freedoms, those subjective expectations obviously
          could play no meaningful role in ascertaining what the scope
          of Fourth Amendment protection was.”
                                                      (emphasis supplied)
       120. After noticing several judgments of US Supreme Court,             B
D.Y.Chandrachud, J. in K.S. Puttaswamy (supra)has noted that the
reasonable expectation of privacy test has been relied on by various
other jurisdictions while developing the right of privacy. In paragraph
195 following has been held:
        “195. The development of the jurisprudence on the right to            C
        privacy in the United States of America shows that even though
        there is no explicit mention of the word “privacy” in the
        Constitution, the courts of the country have not only recognised
        the right to privacy under various amendments to the Constitution
        but also progressively extended the ambit of protection under         D
        the right to privacy. In its early years, the focus was on property
        and protection of physical spaces that would be considered private
        such as an individual’s home. This “trespass doctrine” became
        irrelevant when it was held that what is protected under the right
        to privacy is “people, not places”. The “reasonable expectation
        of privacy” test has been relied on subsequently by various other     E
        jurisdictions while developing the right to privacy.”
       121. As noted above an individual in interaction with society 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    F
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.         G
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.
                                                                              H
568             SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A            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.
B            124. Reference of International Declaration and covenants have
      been made to assert that providing for an identity to every resident is an
      international obligation of India. In this reference following has been
      referred to:-


C               Name of the                        Provision
                Convention
                 [Date of
                Accession]


                 Universal       Article 6: Everyone has the right to
D              Declaration of    recogniti on everywhere a s a person before
                  Human          the la w.
                Rights,1948
               [10.12.1948]
               International      Article 16: Everyone shall have the right to
               Covenant on        recogniti on everywhere a s a person before
E            Civil and P olitical the la w.
               Rights, 1976
               [10.04.1979]
              UN Convention      Article 8: States Parties undertake to respect
              on the Rights of   the right of the child to preserve his or her
              the Child, 1989    identity, including nationa lity, na me and
F              [11.12.1992]      family relations as recognized by law
                                 without unlawful interference.

                                 Article 29(1): States Parties agree tha t the
                                 education of the child shall be directed
                                 to:....(c) The development of respect for the
                                 child's parents, his or her own cultural
G                                identity, language and values, for the
                                 national values of the country in which the
                                 child is living, the country from which he or
                                 she may originate, and for civilizations
                                 different from his or her own;....

H
         JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               569
                       [ASHOK BHUSHAN, J.]

             125.We may also notice one of the applications filed by an                A
      organisation, namely, Swatantra, which works for and represents the
      interests of the transgender and sexual minorities communities in India.
      The submission has been made on behalf of organisation that Aadhaar
      Act and Rules making the Unique Identification Number (UID) or the
      Aadhaar number mandatory and requiring them to provide their personal
                                                                                       B
      demographic and biometric information for enrolment is a serious
      infringement of the constitutional right to privacy and dignity of transgender
      persons. It is submitted that the transgender community has experienced
      a history of legally and socially sanctioned violence and discrimination
      from private individuals and State authorities. Reference of Criminal
      Tribes Act, 1871 and certain State legislations has been made in this            C
      regard. The applicant also refers to judgment of this Court in National
      Legal Services Authority and Union of India and others, 2014 (5)
      SCC 438, where this Court has held that the freedom of expression
      includes one’s right to expression of a self-identified gender identity
to    through dress, action behaviour etc. The submission has been made that
re                                                                                     D
      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.
to           126. Further, the Aadhaar Act amounts to discrimination against
re    transgender persons under Article 15 of the Constitution on the ground
      of gender. Further, it is contended that disclosure of gender identity           E
      violates Article 21 and Article 19(1)(a) of the transgender persons.
ct            127.We having considered the provisions of the Act and
er    Enrolment and Update Regulations and having found that disclosure of
nd    demographic information does not violate any right of privacy, the said
 w    conclusion shall also be fully applicable with regard to transgender. This       F
      Court in NALSA (supra) has held that Article 19(1)(a) which provides
he    that all citizens shall have the right to freedom of speech and expression
ed    which includes one’s right to expression and his self-identified gender, it
he    is the right of a person to identify his gender. In paragraphs 69 and 72 of
 al   the judgment following has been laid down:
he
                                                                                       G
he                  “69. Article 19(1) of the Constitution guarantees certain
or            fundamental rights, subject to the power of the State to impose
ns
              restrictions from exercise of those rights. The rights conferred
              by Article 19 are not available to any person who is not a citizen
              of India. Article 19(1) guarantees those great basic rights which        H
570            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A             are recognized and guaranteed as the natural rights inherent in
              the status of the citizen of a free country. Article 19(1)(a) of the
              Constitution states that all citizens shall have the right to freedom
              of speech and expression, which includes one’s right to expression
              of his self-identified gender. Self-identified gender can be
              expressed through dress, words, action or behavior or any other
B
              form. No restriction can be placed on one’s personal appearance
              or choice of dressing, subject to the restrictions contained in
              Article 19(2) of the Constitution.
              72. Gender identity, therefore, lies at the core of one’s personal
              identity, gender expression and presentation and, therefore, it
C             will have to be protected Under Article 19(1)(a) of the Constitution
              of India. A transgender’s personality could be expressed by the
              transgender’s behavior and presentation. State cannot prohibit,
              restrict or interfere with a transgender’s expression of such
              personality, which reflects that inherent personality. Often the
D             State and its authorities either due to ignorance or otherwise fail
              to digest the innate character and identity of such persons. We,
              therefore, hold that values of privacy, self-identity, autonomy and
              personal integrity are fundamental rights guaranteed to members
              of the transgender community Under Article 19(1)(a) of the
              Constitution of India and the State is bound to protect and
E             recognize those rights.”
             128. When this Court has already recognised the constitutional
      right of transgenders of their self-identification and it has been further
      held that self-identification relates to their dignity. Dignity is a human
      right which every human being possesses. Article 15 came for
F     consideration in the said judgment where this Court held that Article 15
      has used the expression ‘citizen’ and ‘sex’ which expressions are ‘gender
      neutral’. The protection of fundamental rights is equally applicable to
      transgenders. Paragraph 82 is as follows:
                   “82. Article 14 has used the expression “person” and the
G             Article 15 has used the expression “citizen” and “sex” so also
              Article 16. Article 19 has also used the expression “citizen”.
              Article 21 has used the expression “person”. All these
              expressions, which are “gender neutral” evidently refer to human-
              beings. Hence, they take within their sweep Hijras/Transgenders
H             and are not as such limited to male or female gender. Gender
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                571
                 [ASHOK BHUSHAN, J.]

        identity as already indicated forms the core of one’s personal            A
        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             B
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-             C
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 breached in giving the demographic information. In so far as
biometric information as held above, ample justification has been found
which satisfied the three fold test as laid down in Puttaswamy case,              D
which is equally applicable to transgender also.
       130. Now, we come to the biometric information as referred to in
Section 2(g) and required to be given in the process of enrolment by a
person. Biometric information means photographs, fingerprints, iris scan
and other such biometric attributes of an individual as may be specified          E
by the regulations. Biometric informations are of physical characteristics
of a person. A person has full bodily autonomy and any intrusion in the
bodily autonomy of a person can be readily accepted as breach of his
privacy. In Regina (Wood) Vs. Commissioner of Police of the
Metropolis (supra), in paragraph 21, following has been laid down by
Lord LJ.:-                                                                        F

        “21. The notion of the personal autonomy of every individual
        marches with the presumption of liberty enjoyed in a free polity:
        a presumption which consists in the principle that every
        interference with the freedom of the individual stands in need of
        objective justification. Applied to the myriad instances recognised       G
        in the Article 8 jurisprudence, this presumption means that, subject
        to the qualifications I shall shortly describe, an individual’s
        personal autonomy makes him - should make him - master of all
        those facts about his own identity, such as his name, health,
        sexuality, ethnicity, his own image, of which the cases speak;            H
572             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A             and also of the “zone of interaction” (the Von Hannover case 40
              EHRR I, paragraph 50) between himself and others. He is the
              presumed owner of these aspects of his own self; his control of
              them can only be loosened, abrogated, if the State shows an
              objective justification for doing so.”
B           131. U.S. Supreme Court in United States Vs. Antonio
      Dionisio, 35 L.Ed. 2D 67 had occasion to consider physical
      characteristic of a person’s voice in context of violation of privacy rights.
      With regard to fingerprints, it was noticed that the fingerprinting itself
      involves none of the probing into an individual’s private life. In paragraph
      Nos. 21, 22 following was stated:-
C
              “[21,22] In Katz v. United States, supra, we said that the Fourth
              Amendment provides no protection for what “a person knowingly
              exposes to the public, even in his own home or office . . ..” 389
              U.S., at 351, 19 L Ed 2d 576. The physical characteristics of a
              person’s voice, its tone and manner, as opposed to the content of
D             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
E             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
F               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
G               compelled execution of handwriting or voice exemplars; nothing
                is being exposed to the grand jury that has not previously been
                exposed to the public at large.”’ United States v. Doe
                (Schwartz), 457 F2d, at 898-899.
              The required disclosure of a person’s voice is thus immeasurably
H             further removed from the Fourth Amendment protection than
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              573
                [ASHOK BHUSHAN, J.]

       was the intrusion into the body effected by the blood extraction        A
       in Schmerber. “The interests in human dignity and privacy which
       the Fourth Amendment protects forbid any such intrusions on
       the mere chance that desired evidence might be obtained.”
       Schmerber v. California, 384 US, at 769-770, 16L Ed 2d 908.
       Similarly, a seizure of voice exemplars does not involve the
                                                                               B
       “severe, though brief, intrusion upon cherished personal security,”
       effected by the “pat-down” in Terry—”surely . . . an annoying,
       frightening and perhaps humiliating experience.” Terry v. Ohio,
       392 US, at 24-25, 20 L Ed 2d 889. Rather, this is like the
       fingerprinting in Davis, where, though the initial dragnet detentions
       were constitutionally impermissible, we noted that the                  C
       fingerprinting itself “involves none of the probing into an
       individual’s private life and thoughts that marks an interrogation
       or search.” Davis v. Mississippi, 394 US, at 727, 22 L Ed 2d 676:
       cf. Thom v. New York Stock Exchange, 306 F Supp 1002, 1009.”
       132. The petitioners have relied upon S. and Marper Vs. The             D
United Kingdom, a judgment of Grand Chamber of European Court
of Human Rights dated 04.12.2008. European Court of Human Rights
on an application submitted by Mr. S and Mr. Marper allowed their claim
of violation of Article 8 of Convention. Applicants had complained that
the authorities had continued to retain their fingerprints and cellular
samples and DNA profiles after the criminal proceedings against them           E
had ended with an acquittal or had been discontinued. In the above
context, nature of fingerprints and DNA samples came to be examined
in reference of breach of Article 8 of the Convention. The retention of
DNA samples and fingerprints was held to be interference with the right
to respect for private life. In paragraph 84, following was held:-             F
       “84. The Court is of the view that the general approach taken by
       the Convention organs in respect of photographs and voice
       samples should also be followed in respect of fingerprints. The
       Government distinguished the latter by arguing that they
       constituted neutral, objective and irrefutable material and, unlike     G
       photographs, were unintelligible 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.
                                                                               H
574             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A             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
B     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-
C             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 results that
              may be obtained (see, mutatis mutandis, Friedl, cited above,
              §§49-51, and Peck v. the United Kingdom, cited above,
D             §59).”
            134. The biometric data as referred to in Section 2(g) thus may
      contain biological attributes of an individual with regard to which a person
      can very well claim a reasonable expectation of privacy but whether
      privacy rights have been breached or not needs to be examined in the
E     subject context under which the informations were obtained.
             135. Having found that biometric information of a person may
      claim a reasonable expectation of privacy, we have to answer as to
      whether obtaining biometric information in context of enrolment breaches
      the right of privacy of individual or not.
F
             136. D.Y. Chandrachud, J. in Puttaswamy (supra) held that all
      restraints on privacy, i.e. whether a person has reasonable expectation
      of privacy, must fulfill three requirements before a restraint can be held
      to be justified. In Paragraph 319, following has been held:-
              “310. While it intervenes to protect legitimate state interests, the
G
              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
H             there must be a law in existence to justify an encroachment on
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              575
                 [ASHOK BHUSHAN, J.]

        privacy is an express requirement of Article 21. For, no person         A
        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 zone of
                                                                                B
        reasonableness mandated by Article 14, which is a guarantee
        against arbitrary State action. The pursuit of a legitimate state
        aim ensures that the law does not suffer from manifest
        arbitrariness. Legitimacy, as a postulate, involves a value
        judgment. Judicial review does not re-appreciate or second guess
        the value judgment of the legislature but is for deciding whether       C
        the aim which is sought to be pursued suffers from palpable or
        manifest arbitrariness. The third requirement ensures that the
        means which are adopted by the legislature are proportional to
        the object and needs sought to be fulfilled by the law.
        Proportionality is an essential facet of the guarantee against
                                                                                D
        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      E
        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,         F
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, subsidies and services. Several materials have been       G
brought on the record which reflect that in the several studies initiated
by the Government as well as the World Bank and Planning Commission,
it was revealed that food grains released by the Government for the
beneficiaries did not reach the intended beneficiaries and there was large
scale leakages due to the failure to establish identity. Reference to Audit     H
576                SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     Report No. 3 of 2000 of Comptroller & Auditor General of India is made
      in this regard. The Planning Commission of India in its Performance
      Evaluation Report titled “Performance Evaluation Report of Targeted
      Public Distribution System(TPDS)” dated March, 2005 found as follows:-
              I.     State-wise figure of excess Ration Cards in various states
B                    and the existence of over 1.52 Crore excess Ration Cards
                     issued.
              II.    Existence of fictitious households and identification errors
                     leading to exclusion of genuine beneficiaries.
              III. Leakage through ghost BPL Ration Cards found to be
C                  prevalent in almost all the States under study.
              IV. The leakage of food grains through ghost cards has been
                  tabulated and the percentage of such leakage on an All
                  India basis has been estimated at 16.67%.

D             V.     It is concluded that a large part of the subsidized food-
                     grains were not reaching the target group.
              138. The Law, i.e., Aadhaar Act, which has been brought to provide
      for unique identity for delivery of subsidies, benefits or services was a
      dire necessity, which decision was arrived at after several reports and
      studies. Aadhaar Act was, thus, enacted for a legitimate State aim and
E
      fulfills the criteria of a law being fair and reasonable. Learned Attorney
      General has also placed reliance on report of United Nations titled
      “Leaving No One Behind: the imperative of inclusive development”,
      which has stated as follows:-
              “The decision of India in 2010 to launch the Aadhaar programme
F
              to enrol the biometric identifying data of all its 1.2 billion citizens,
              for example, was a critical step in enabling fairer access of the
              people to government benefits and services. Programmes such
              as Aadhaar have tremendous potential to foster inclusion by giving
              all people, including the poorest and most marginalized, an official
G             identify. Fair and robust systems of legal identity and birth
              registration are recognised in the new 2030 Agenda for
              Sustainable Development as an important foundation for
              promoting inclusive societies.”
           139. Learned Attorney General has also relied on Resolution of
H     the United Nations General Assembly dated 25.09.2015 titled
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               577
                 [ASHOK BHUSHAN, J.]

“Transforming our World: the 2030 Agenda for Sustainable                         A
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.           B
Bowen, Secretary of Health and Human Services, et al. Vs.
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         C
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;           D
        inescapably at the same time the administration of complex
        programs requires certain conditions and restrictions. Although
        in some 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          E
        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, 406 U.S. 205,         F
        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            G
        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. Absent proof of an
        intent to discriminate against particular religious beliefs or against
        religion in general, the Government meets its burden when it             H
578            SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A             demonstrates that a challenged requirement for governmental
              benefits, neutral and uniform in its application, is a reasonable
              means of promoting a legitimate public interest. “
             141. Repelling an argument that requirement of providing social
      security account number for obtaining financial aid to dependent children
B     violates the right to privacy, following was held in Doris McElrath Vs.
      Joseph A. Califano, in Para 11:-
              “[11] The appellants’ principal contention on appeal is that the
              federal and state regulations requiring dependent children to
              acquire and submit social security account numbers as a condition
C             of eligibility for AFDC benefits are statutorily invalid as being
              inconsistent with and not authorized by the Social Security Act.
              We find the arguments advanced in support of this contention to
              be without merit and hold that the challenged regulations
              constitute a legitimate condition of eligibility mandated by the
              Congress under the Social Security Act. Accord, Chambers v.
D             Klein, 419 F. Supp. 569 (D.N.J. 1976), aff’d mem., 564 F.2d 89
              (3d Cir. 1977); Green v. Philbrook, 576 F.2d 440 (2d Cir. 1978);
              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
E             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
F     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 Others Vs. State of
      Madhya Pradesh and Others, (2016) 7 SCC 353, Dr. Sikri, J
      explaining the concept of proportionality laid down following in Paragraphs
      64 and 65:-
G
              “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.
H             balancing of different interests.
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            579
              [ASHOK BHUSHAN, J.]

   65. We may unhesitatingly remark that this doctrine of                  A
   Proportionality, explained hereinabove in brief, is enshrined in
   Article 19 itself when we read Clause (1) along with Clause (6)
   thereof. While defining as to what constitutes a reasonable
   restriction, this Court in plethora of judgments has held that the
   expression “reasonable restriction” seeks to strike a balance
                                                                           B
   between the freedom guaranteed by any of the sub-clauses of
   Clause (1) of Article 19 and the social control permitted by any
   of the clauses (2) to (6). It is held that the expression
   “reasonable” connotes that the limitation imposed on a person in
   the enjoyment of the right should not be arbitrary or of an excessive
   nature beyond what is required in the interests of public. Further,     C
   in order to be reasonable, 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 (1982) 2 SCC 33. At the same time, reasonableness
   of a restriction has to be determined in an objective manner and
                                                                           D
   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 1959 SCR 629). In M.R.F. Ltd. v.
   State of Kerala (1998) 8 SCC 227, this Court held that in
   examining the reasonableness of a statutory provision one has to        E
   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.                                                               F
     (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,          G
     prevailing conditions and the surrounding circumstances.
     (4) A just balance has to be struck between the restrictions
     imposed and the social control envisaged by Article 19(6).
     (5) Prevailing social values as also social needs which are
     intended to be satisfied by the restrictions.
                                                                           H
580             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A                (6) There must be a direct and proximate nexus or reasonable
                 connection between the restrictions imposed and the object
                 sought to be 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.”
B            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
C     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
D     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 the measures taken was not more than necessary. Reference is
      made to the judgment of Digital Rights Ireland Ltd. Vs. Minister
      for Communications [2015] QBECJ, wherein it was held:
E              “46 In that regard, according to the settled case law of the court,
               the principle of proportionality requires that acts of the EU
               institutions be appropriate for attaining the legitimate objectives
               pursued by the legislation at issue and do not exceed the limits of
               what is appropriate and necessary in order to achieve those
F              objectives: see Afton Chemical Ltd v Secretary of State for
               Transport (Case C-343/09) [2010] ECR I-7027, para 45; the
               Volker case [2010] ECR I-11063, para 74; Nelson v Deutsche
               Lufthansa AG (Joined Cases C-581/10 and C-629/10) [2013] 1
               All ER (Comm) 385, para 71; Sky Osterreich GmbH v
               Osterreichischer Rundfunk (Case C-283/11) [2013] All ER (EC)
G              633, para 50; and Schaible v Land Baden- Wiirttemberg (Case
               C-101/12) EU:C:2013:66I; 17 October 2013, para 29.”
             144. United Kingdom Supreme Court in AB Vs. Her Majesty’s
      Advocate, [2017] UK SC 25, held that it is not for the Court to identify
      the alternative measures, which may be least intrusive. In Para 37 and
H     39, following has been held:-
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              581
                 [ASHOK BHUSHAN, J.]

        “37. I am not persuaded. It is important to recall that the question    A
        of whether the Parliament could have used a less intrusive
        measure does not involve the court in identifying the alternative
        measure which is least intrusive. The court allows the legislature
        a margin of discretion and asks whether the limitation on the
        article 8 right is one which it was reasonable for the Parliament
                                                                                B
        to propose: Bank Mellat v HM Treasury (No 2) [2013] UKSC
        38, [2014] AC 700, para 75 per Lord Reed;
        39. The balance, which this court is enjoined to address, is
        different. It is the question of a fair balance between the public
        interest and the individual’s right to respect for his or her private
        life under article 8. The question for the court is, in other words,    C
        whether the impact of the infringement of that right is
        proportionate, having regard to the likely benefit of the impugned
        provision.”
       145. The biometric information which are obtained for Aadhaar
enrolment are photographs, fingerprints and iris scan, which are least          D
intrusion in physical autonomy of an individual. U.S. Supreme Court in
John Davis Vs. State of Mississippi, 394 US 721 (1969), indicated
that Fingerprinting involves 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        E
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.        F
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           G
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
disproportionate to the objective of the Act. Biometric information, thus,
which is to be obtained for enrolment are not disproportionate nor the
                                                                                H
582            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     provisions of Aadhaar Act requiring demographic and biometric
      information can be said to be not passing three-fold test as laid down in
      Puttaswamy (supra) case. We, thus, answer Issue Nos. 1 and 2 in
      following manner:-
      Ans.1 and 2:-(i) requirement under Aadhaar Act to give one’s
B                  demographic and biometric information does not
                   violate fundamental right of privacy.
                 (ii)   The provisions of Aadhaar Act requiring demographic
                        and biometric information from aresident for Aadhaar
                        Number pass three-fold test as laid down in Puttaswamy
C                       (supra) case, hence cannot be said to be
                        unconstitutional.

       ISS UE NO S. 3, 4     CO LLE CTIO N, S TORAG E, RETE NTI ON,
       AND 5                 USE , SH ARING AND SURVE ILL ACE.

D            146. The Aadhaar Act provides complete architecture beginning
      with enrolment. The enrolment means process to collect demographic
      and biometric information from individuals by enroling agencies. The
      enroling agencies have to set up enrolment centers and have to function
      in accordance with the procedure specified by UIDAI. Section 8
      contemplates for authentication for Aadhaar number which authentication
E     was done by authority. When a request is made for identification by any
      requesting entity in respect to biometric or demographic information of
      Aadhaar number holder, the authority may engage one or more entities
      to establish and maintain central identity data repository. Section 28
      provides for the security and confidentiality of information which is to
F     the following effect:
             28. (1) The Authority shall ensure the security of identity
             information and authentication records of individuals.
             (2) Subject to the provisions of this Act, the Authority shall ensure
             confidentiality of identity information and authentication records
G            of individuals.
             (3) The Authority shall take all necessary measures 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 access, use or
H            disclosure not permitted under this Act or regulations made
            JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               583
                          [ASHOK BHUSHAN, J.]

                 thereunder, and against accidental or intentional destruction, loss      A
                 or damage.
                 (4) Without prejudice to sub-sections (1) and (2), the Authority
                 shall—
                   (a) adopt and implement appropriate technical and organisational
                   security measures;                                                     B

                   (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
                   (c) ensure that the agreements or arrangements entered into
                   with such agencies, consultants, advisors or other persons,
TI ON,             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.
                                                                                          D
                 (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          E
                 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.                                              F
               147. The Act contains specific provision providing that no core
         biometric information collected under the Act is shared to anyone for
         any reason whatsoever or use for any purpose other than generation of
         Aadhaar number or authentication under this Act. The statute creates
         injunction for requesting entity to use identity information data for any        G
         purpose other than that specified to the individual at the time for submitting
         any identification. Section 29 provides for not sharing information
         collected or created under this Act, which is to the following effect:
                 “29. (1) No core biometric information, collected or created under
                 this Act, shall be—                                                      H
584             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A               (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.
              (2) The identity information, other than core biometric information,
              collected or created under this Act may be shared only in
B             accordance with the provisions of this Act and in such manner
              as may be specified by regulations.
              (3) No identity information available with a requesting entity shall
              be—

C               (a) used for any purpose, other than that specified to the
                individual at the time of submitting any identity information for
                authentication; or Security and confidentiality of information.
                (b) disclosed further, except with the prior consent of the
                individual to whom such information relates.
D             (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.”
             148. Section 30 itself contemplates that biometric information are
E     sensitive personal data or information. There are strict conditions
      envisaged in Section 33 for disclosure of information. The disclosure of
      information is contemplated only on two contingencies. Firstly, when an
      order is passed by a Court not inferior to that of District Judge and
      secondly when the disclosure is made in the interest of national security
      in pursuance of a direction of the officer not below the rank of Joint
F
      Secretary to the Government of India.
              149. Chapter VII of the Act deals with the offences and penalties
      for impersonation at the time of enrolment penalty for disclosing identity
      information is provided under Sections 34 to 37. Section 38 provides for
      penalty who accesses or secures access to the Central Identities Data
G     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
H     entity. Section 42 deals with general penalty. Section 42 is as follows:
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            585
                [ASHOK BHUSHAN, J.]

       “42. Whoever commits an offence under this Act or any rules or        A
       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
                                                                             B
       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, 2016.                                              C

        151. We have already noticed the detailed submissions of learned
counsel for UIDAI. Following are the measures by which Security
Data of privacy is ensured. The security and data privacy is ensured
in the following manner:-
                                                                             D
       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             E
              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.
                                                                             F
       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 thee n r o l m e n t
              client software to the CIDR is decrypted by the enrolment
                                                                             G
              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.
                                                                             H
586             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A             vi.   The biometric system provides high accuracy of over
                    99.86%. The mixed biometric have been adopted only to
                    enhance the accuracy and to reduce the errors which may
                    arise on account of some residents either not having
                    biometrics or not having some particular biometric.
B            152. After the enrolment and allotting an Aadhaar number to
      individual the main function of the authority is authentication of an Aadhaar
      number holder as and when request is made by the requesting agency.
      The authentication facility provided by the authority is under Section 3
      of the Authentication Regulations, 2016 which is to the following effect:
C             “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
D
                (ii) e-KYC authentication facility, which may be carried out
                only using OTP and/ or biometric authentication modes as
                specified in regulation 4(2).”
            153. Various modes of authentication are provided in Regulation
      4 of Authentication Regulations 2016, which are: Demographic
E
      authentification; One 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
F
      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
G             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.

H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               587
                 [ASHOK BHUSHAN, J.]

        (3) For optimum results in capturing of biometric information, a         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.                                  B
       156. The Aadhaar (Data Security) Regulations, 2016 contain detail
provisions to ensuring data security. Regulation 3 deals with measures
for ensuring information security. Regulation 5 provides security
obligations of the agencies, consultants, advisors and other service
providers engaged by the Authority for discharging any function relating         C
to its processes.
       157. The Aadhaar (Sharing of Information) Regulations, 2016 also
contain provisions providing for restrictions on sharing identity information.
Sub-Regulation (1) of Regulation 3 provides that core biometric information
collected by the Authority under the Act shall not be shared with anyone         D
for any reason whatsoever.
       158. Sharing of Information Regulations, 2016 also contain various
other restrictions. Regulation 6 contains restrictions on sharing, circulating
or publishing of Aadhaar number which is to the following effect:
        “6. Restrictions on sharing, circulating or publishing of                E
        Aadhaar number. —
        (1) The Aadhaar number of an individual shall not be published,
        displayed or posted publicly by any person or entity or agency.
        (2) Any individual, entity or agency, which is in possession of
        Aadhaar number(s) of Aadhaar number holders, shall ensure                F
        security and confidentiality of the Aadhaar numbers and of any
        record or database containing the Aadhaar numbers.
        (3) Without prejudice to sub-regulations (1) and (2), no entity,
        including a requesting entity, which is in possession of the Aadhaar
        number of an Aadhaar number holder, shall make public any                G
        database or record containing the Aadhaar numbers of individuals,
        unless the Aadhaar numbers have been redacted or blacked out
        through appropriate means, both in print and electronic form.
        (4) No entity, including a requesting entity, shall require an
        individual to transmit his Aadhaar number over the Internet unless
                                                                                 H
588             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A             such transmission is secure and the Aadhaar number is
              transmitted in encrypted form except where transmission is
              required for correction of errors or redressal of grievances.
              (5) No entity, including a requesting entity, shall retain Aadhaar
              numbers or any document or database containing Aadhaar
B             numbers for longer than is necessary for the purpose specified
              to the Aadhaar number holder at the time of obtaining consent.”
             159. The scheme of the Aadhaar Act indicates that all parts of
      the entire process beginning from enrolment of a resident for allocation
      of Aadhaar number are statutory regulated.
C             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
D
              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;
E               (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
F               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
G
      enrolment of resident, his informations including biometric information
      are retained in CIDR though in encrypted form. The major function of
      the authority under Aadhaar Act is authentication of identity of Aadhaar
      number holder as and when requests are made by requesting agency,
      retention of authentication data of requesting agencies are retained for
H     limited period as noted above. There are ample safeguards for security
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                 589
                 [ASHOK BHUSHAN, J.]

and data privacy in the mechanism which is at place as on date as noted            A
above.
        162. Shri Shyam Divan, learned senior counsel appearing for the
petitioners has passionately submitted that entire process of authentication
as is clear from actual working of the Aadhaar programme reveals that
Aadhaar Act enables the State to put the entire population of the country          B
in an electronic leash and they are tracked 24 hours and 7 days. He
submits that putting the entire population under surveillance is nothing
but converting the State into a totalitarian State. Elaborating his
submission, Shri Divan submits that process of authentication creates
authentication records of (1) time of authentication, (2) identity of the
requesting entity. Both requesting entity and UIDAI have authentication            C
transactions data which record the technical details of transactions. The
devices which are used by the requesting entities have IP address which
enables knowledge about geographical information of Aadhaar number
holder with knowledge of his location, details of transaction, every person
can be tracked and by aggregating the relevant data the entire population          D
is put on constant surveillance. Aadhaar programme endeavours all time
mass surveillance by the State which is undemocratic and violates the
fundamental rights of individual.
       163. The meta data regarding authentication transactions which
are stored with the authority are potent enough to note each and every             E
transaction of resident and to track his activities is nothing but surveillance.
Regulation 26 of Authentication Regulations, 2016 provides storage of
meta data related to the transaction. Regulation 26 which is relevant is
as follows:
        “26. Storage and Maintenance of Authentication                             F
        Transaction Data. — (1) The Authority 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;                                   G
          (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.”
                                                                                   H
590             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A            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
B
      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.
C     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
D             administration in ways that were inconceivable a few years ago.
              The loss to the economy and citizens in case of such an attack is
              bound to be incalculable.”
             166. He has further submitted that a digital world is far more
      susceptible to manipulation than the physical world. No legislation can
E     or should allow an individual’s personal data to be put at risk, in the
      absence of a technologically assured and safe environment. Such level
      of assurance is impossible to obtain in the digital space. Biometric, core
      biometric and demographic information of an individual, once part of the
      digital world is irretrievable: a genie out of the bottle that cannot be put
F     back. The digital world is a vehicle to benefit the information economy.
      A move from an information economy to creating an architecture for an
      information polity has far reaching consequences impacting the most
      personal rights, protected by the right to privacy. The technology acquired
      by the UIDAI has also been criticised by the Opaque Foreign
      Technologies.
G
             167. The above submissions have been strongly refuted by learned
      Attorney General and learned counsel appearing for the UIDAI. It is
      submitted by the respondents that the above submissions regarding mass
      surveillance have been made on misconception regarding actual operation
      of the entire process.
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               591
                 [ASHOK BHUSHAN, J.]

       168. The meta data which is aggregation of authentication                 A
transactions does not contain any detail of actual transaction done by
ANH. In the event, in a period of 30 days, 30 requesting agencies, may
be one or different, have requested for authentication the UIDAI has
only the recipient of demographic/biometric of ANH authentication without
any information regarding purposes of authentication. Thus, even if
                                                                                 B
authentication details are aggregated, there is no information with the
UIDAI regarding purpose of authentication nor authentication leaves
for any trail so as to keep any track by UiDAI to know the nature of
transaction or to keep any kind of surveillance as alleged. Section 32
sub-section (3) of the Aadhaar Act specifically prohibits the authority
from collecting or maintaining either directly or indirectly any information     C
for the purpose of authentication.
      169. Proviso to Regulation 26 is also to the same effect i.e.
provided that the authority shall not, in any case, store the purpose of
authentication.
       170. Elaborating on CIDR, Shri Dwivedi submits that CIDR is a             D
centralised database which contains all Aadhaar numbers 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             E
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.               F
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             G
and photo are stored securely in the authentication server database.
This database is used for authentication in the manner provided in Aadhaar
(Authentication) Regulation 2016.
      171. In view of above, the apprehension raised by Shri Kapil Sibal
that CIDR is a soft target is misplaced.                                         H
592             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A            172. To support his submission, Shri Shyam Divan, learned counsel
      for the petitioner has placed reliance on judgment of the United States
      Supreme Court in United States vs. Antoine Jones, 132 S.Ct. 945
      (2012).
             173. A large number of foreign judgments touching various aspects
B     of accumulation of data, retention of data, surveillance, has been cited
      by both the parties to support their respective stand. It is necessary to
      have an over view of the opinion expressed by various Courts in other
      countries of the world. The present age being the age of technology and
      information, the issues pertaining to storage and retention of personal
      data in different contexts have come up before several Courts of different
C     countries which also need to be noted.
             174. The petitioners have relied on European Court, Human Rights
      in S. and Marper vs. The United Kingdom, 2008 (48) EHRR 50.
      The applicants, S and Marper had submitted two applications against
      the United Kingdom, Great Britain and Northern Ireland under Article
D     34 of the Convention for the Protection of Human Rights and Fundamental
      Freedoms (the Convention). The applicants complained that the authorities
      had continued to retain their fingerprints and cellular samples and DNA
      profiles after the criminal proceedings against them had ended with an
      acquittal or had been discontinued. The applicants had applied for judicial
E     review of the police decisions not to destroy the fingerprints and samples
      which application was rejected. The Court of appeal upheld the decision
      of the Administrative Court. The House of Lords had also dismissed the
      appeal on 22nd July, 2004. The House of Lords had taken the view that
      the mere retention of fingerprints and DNA samples did not constitute
      an interference with the right to respect for private life but stated that, if
F     he were wrong in that view, he regarded any interference as very modest
      indeed.
             175. BARONESS HALE disagreed with the majority considering
      that the retention of both fingerprint and DNA data constituted an
      interference by the State in a person’s right to respect for his private life
G     and thus required justification under the Convention. The application of
      the applicant was taken by European Court of Human 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
H     Kingdom is the only member State expressly to permit the systematic
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              593
                 [ASHOK BHUSHAN, J.]

and indefinite retention of DNA profiles and cellur samples of persons          A
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       B
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                 C
        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 results that
        may be obtained (see, mutatis mutandis, Friedl, cited above,            D
        49-51, and Peck v. The United Kingdom, cited above, 59).”
      177. Following was laid down in paragraph 73 & 77:
        “73. Given the nature and the amount of personal information
        contained in cellular samples, their retention per se must be           E
        regarded as interfering with the right to respect for the private
        lives of the individuals concerned. That only a limited part of this
        information is actually extracted or used by the authorities through
        DNA profiling and that no immediate detriment is caused in a
        particular case does not change this conclusion (see Aman cited
        above, 69).                                                             F
        77. In view of the foregoing, the Court concludes that the retention
        of both cellular samples and DNA profiles discloses an
        interference with the applicants’ right to respect for their private
        lives, within the meaning of Article 8(1) of the Convention.”
                                                                                G
      178. The Court also considered the issue of retention of
fingerprints, and held that retention of fingerprints may also give rise to
important private life concerns. The Court also held that the domestic
law must afford appropriate safeguards to prevent any such use of
personal data as may be inconsistent with the guarantees of Article 8.
Following was held in paragraph 103:                                            H
594             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A             “103. The protection of personal data is of fundamental
              importance to a person’s enjoyment of his or her right to respect
              for private and family life, as guaranteed by Article 8 of the
              Convention. The domestic law must afford appropriate safeguards
              to prevent any such use of personal data as may be inconsistent
              with the guarantees of this Article (see mutatis mutandis, Z.,
B
              cited above, 95). The need for such safeguards is all the greater
              where the protection of personal data undergoing automatic
              processing is concerned, not least when such data are used for
              police purposes. The domestic law should notably ensure that
              such data are relevant and not excessive in relation to the purposes
C             for which they are stored; and preserved in a form which permits
              identification of the data subjects for no longer than is required
              for the purpose for which those data are stored.”
             179. United Kingdom Supreme Court had occasion to consider
      the issue of retention of data in Regina (Catt) v. Association of Chief
D     Police Officers of England, Wales and Northern Ireland and
      another,(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
E     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
F     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
G             consistently recognised that (subject always to proportionality)
              public safety and the prevention and detection of crime will justify
              it provided that sufficient safeguards exist to ensure that personal
              information is not retained for longer than is required for the
              purpose of maintaining public order and preventing or detecting
              crime, and that disclosure to third parties is properly restricted:
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               595
                 [ASHOK BHUSHAN, J.]

        see Bouchacourt v France, given 17 December 2009, paras 68-              A
        69, and Brunet v. France (Application No.21010/10) (unreported)
        given 18 September 2014, para 36. In my opinion, both of these
        requirements are satisfied in this case. Like any complex system
        dependent on administrative supervision, the present system is
        not proof against mistakes. At least in hindsight, it is implicit in
                                                                                 B
        the 2012 report of HMIC and the scale on which the database
        was weeded out over the next two years that the police may
        have been retaining more records than the Code of Practice and
        the MOPI guidelines really required. But the judicial and
        administrative procedures for addressing this are effective, as
        the facts disclosed on this appeal suggest.”                             C
        180. The preponderance of authorities on the subject of retention
of data is that retention of personal data effecting personal life of an
individual may interfere in his right of privacy and the State can justify
its retention subject to proportionality and subject to there being sufficient
safeguards to personal information is not retained for longer than it            D
required.
       181. Reverting back to the Aadhaar Act, it is clear that requesting
entity as well as authority are required to retain authentication data for a
particular period and thereafter it will be archived for five years and
thereafter authentication data transaction shall be deleted except such          E
data which is required by the Court in connection with any pending dispute.
We had already noticed that data which is retained by the entity and
authority for certain period is minimal information pertaining to identity
authentication only no other personal data is retained. Thus, provisions
of Aadhaar Act and Regulations made thereunder fulfill three fold test
as laid down in Puttaswamy case (supra), hence, we conclude that                 F
storage and retention of data does not violate fundamental right of privacy.
       182. Now, we come to issue of surveillance, which has been very
strongly raised by petitioners. Shri Shyam Divan, learned counsel for
the petitioners has relied on judgment of U.S. Supreme Court in United
States Vs. Antoine Jones, 132 S.Ct. 945 (2012). Antoine Jones, owner             G
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               H
596             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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
B     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:-
C             “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 constitutionally protected area.” Ante,
              at 950, n. 3. In this case, the Government installed a Global
              Positioning System (GPS) tracking device on respondent Antoine
D             Jones’ Jeep without a valid warrant and without Jones’ consent,
              then used that device to monitor the Jeep’s movements over the
              course of four weeks. The Government usurped Jones’ property
              for the purpose of conducting surveillance on him, thereby
              invading privacy interests long afforded, and undoubtedly entitled
E             to, Fourth Amendment protection. See, e.g., Silverman v. United
              States, 365 U. S. 505, 511-512 S1 S.Ct. 679, 5 L.Ed.2d 734
              (1961).”
            184. The above case was a case where tracking device, i.e., GPS
      was installed in the vehicle with purpose and motive of surveillance and
F     obtaining data to be used against Jones. Present is not a case where it
      can be said that Aadhaar infrastructure is designed in a manner as to put
      a surveillance on Aadhaar number holder (ANH).
             185. Another judgment which is relied by Shri Shyam Divan is
      judgment of European Court of Human Rights in Strasbourg Court in
G     Roman Zakharov Vs. Russia decided on 04.12.2015. In the above
      case, the applicant alleged that the system of secret interception of mobile
      telephone communications in Russia violated his right to respect for his
      private life and correspondence and that he did not have any effective
      remedy in that respect. In Para 148 of the judgment, the case of the
      applicant was noted in the following words:-
H
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              597
                [ASHOK BHUSHAN, J.]

       “148. The applicant complained that the system of covert                A
       interception of mobile telephone communications in Russia did
       not comply with the requirements of Article 8 of the Convention,
       which reads as follows:-
         “1. Everyone has the right to respect for his private and family
         life, his home and his correspondence.                                B
         2. There shall be no interference by a public authority with the
         exercise of this right except such as is in accordance with the
         law and is necessary in a democratic society in the interests of
         national security, public safety or the economic well-being of
         the country, for the prevention of disorder or crime, for the         C
         protection of health or morals, or for the protection of the rights
         and freedoms of others.”
      186. The Court came to the following conclusion:-
       “175. The Court notes that the contested legislation institutes a
       system of secret surveillance under which any person using              D
       mobile telephone services 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.”                                                              E
       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             F
Rights Ireland Ltd. Vs. 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              G
       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).”
                                                                               H
598            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A           189. Directive 2006/24 laid down the obligation on the providers
      of publicly available electronic communications services or of public
      communications networks to retain certain data which are generated or
      processed by them. Noticing various articles of the Directives, the Court
      in Paragraph 27 noted:-
B            “27. Those data, taken as a whole, may allow very precise
             conclusions to be drawn concerning the private lives of the
             persons whose data has been retained, such as the habits of
             everyday life, permanent or temporary places of residence, daily
             or other movements, the activities carried out, the social
             relationships of those persons and the social environments
C            frequented by them.”
             190. The directives were held to be violating the principles of
      proportionality. The above case was also a case of retaining data
      pertaining to communications by service providers. The retention of
      communication data is a clear case of intrusion in privacy. The above is
D     also a case which in no manner help the petitioners when contrasted
      with the Aadhaar architecture.
             191. At this juncture, we may also notice one submission raised
      by the petitioners that Aadhaar Act could have devised a less intrusive
      measure/means. It was suggested that for identity purpose, the
E     Government could have devised issuance of a smart card, which may
      have contained a biometric information and retain it in the card itself,
      which would not have begged the question of sharing or transfer of the
      data. We have to examine the Aadhaar Act as it exists. It is not the
      Court’s arena to enter into the issue as to debate on any alternative
F     mechanism, which according to the petitioners would have been better.
      Framing a legislative policy and providing a mechanism for implementing
      the legislative policy is the legislative domain in which Court seldom
      trench.
            192. We may refer to a judgment of U.K. Supreme Court AB Vs.
G     Her Majesty’s Advocate, [2017] UKSC 25, where U.K. Supreme
      Court has not approved the arguments based on less intrusive means.
      Court held that whether the Parliament would have used a less intrusive
      means does not involve the Court in identifying an alternative measure,
      which is least intrusive. In Para 37, following has been laid down:-

H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               599
                 [ASHOK BHUSHAN, J.]

        “37. I am not persuaded. It is important to recall that the question     A
        of whether the Parliament could have used a less intrusive
        measure does not involve the court in identifying the alternative
        measure which is least intrusive. The court allows the legislature
        a margin of discretion and asks whether the limitation on the
        article 8 right is one which it was reasonable for the Parliament
                                                                                 B
        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         C
        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
                                                                                 D
        such a warning. “
       193. We may profitably note the judgment of Privy Council arising
from a decision of Supreme Court of Mauritius – Madhewoo Vs. 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       E
was amended in 2013 by which Government introduced a new smart
identity card, which incorporates on a chip on the citizen’s fingerprints
and other biometric information relating to his/her characteristics. A citizen
of the Republic of Mauritius did not apply for National Identity Card and
he challenged the validity of the 2013 Act. The Supreme Court of                 F
Mauritius held that the provisions of 1985 Act, which enforce the
compulsory taking and recording of fingerprints of a citizen disclosed an
interference with the appellant’s rights guaranteed under Section 9(1) of
the Constitution. The Section 9(1) provided “except with his own consent,
no person shall be subject to the search of his person or his private or the
entry by others in his premises.” Supreme Court had rejected the                 G
challenge to the other provisions of the Constitution. Matter was taken
to the Privy Council. The challenge made before the Privy Council was
noticed in Para 7 of the judgment, which is to the following effect:-
        “7. In this appeal the appellant challenges the constitutionality of
        (a) the obligation to provide fingerprints and other biometric           H
600            SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A             information under section 4, (b) the storage of that material on
              the identity card under section 5, (c) the compulsory production
              of an identity card to a policeman under section 7(1A) in response
              to a request under section 7(1)(b), and (d) the gravity of the
              potential penalties under section 9(3) for non-compliance. He
              claims, first, that the implementation of the new biometric identity
B
              card is in breach of sections 1, 2, 3, 4, 5, 7, 9, 15, 16 and 45 of the
              Constitution coupled with article 22 of the Civil Code (which
              provides that everyone has the right to respect for his private life
              and empowers courts with competent jurisdiction to prevent or
              end a violation of privacy) and, secondly, that the collection and
C             permanent storage of personal biometric data, including
              fingerprints, on the identity card are in breach of those sections
              of the Constitution and that article of the Civil Code. “
             194. The Privy Council agreed with the decision of the Supreme
      Court that compulsory taking of fingerprints and the extraction of minutiae
D     involved an interference with the appellant’s Section 9 rights which
      required to be justified under Section 9(2). The challenge raised before
      the Privy Council has been noticed in Para 25, which challenges were
      repelled. Paras 25 and 26 are as follows:-
              “25. The appellant challenges the Supreme Court’s evaluation
E             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
F             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.
G             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
H             was empowered to require the appellant to produce his identity
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                601
                [ASHOK BHUSHAN, J.]

       card and the government had issued card readers, the authorities          A
       would have access to his fingerprint minutiae which they could
       use for the purposes of identification in a criminal investigation.
       But that does not alter the presumption of innocence. Secondly,
       the penalties in section 9(3) are maxima for offences, including
       those in section 9(1), which cover serious offences such as
                                                                                 B
       forgery and fraudulent behaviour in relation to identity cards.
       The subsection does not mandate the imposition of the maximum
       sentence for any behaviour. Thirdly, while judicial rulings on
       international instruments and the constitutions of other countries
       can often provide assistance to a court in interpreting the
       provisions protecting fundamental rights and freedoms in its own          C
       constitution, the degree of such assistance will depend on the
       extent to which the documents are similarly worded.”
       195. As noticed above, learned counsel for the petitioners has
raised various issues pertaining to security and safety of data and CIDR.
Apprehensions raised by the petitioners does not furnish any ground to           D
struck down the enactment or a legislative policy. This Court in G.
Sundarrajan Vs. Union of India and Others. (2013) 6 SCC 620,
had occasion to consider India’s National Policy and challenge to a
Nuclear Project, which was launched by the Government upholding the
legislative policy, the Court laid down following in Paras 15 and 15.1:-
                                                                                 E
       “15. India’s National Policy has been clearly and unequivocally
       expressed by the legislature in the Atomic Energy Act. National
       and International policy of the country is to develop control and
       use of atomic energy for the welfare of the people and for other
       peaceful purposes. NPP has been set up at Kudankulam as part
       of the national policy which is discernible from the Preamble of          F
       the Act and the provisions contained therein. It is not for Courts
       to determine whether a particular policy or a particular decision
       taken in fulfillment of a policy, is fair. Reason is obvious, it is not
       the province of a court to scan the wisdom or reasonableness of
       the policy behind the Statute.                                            G
       15.1. Lord MacNaughten in Vacher & Sons Ltd. v. London
       Society of Compositors (1913) AC 107 HL has stated:
         “......Some people may think the policy of the Act unwise and
         even dangerous to the community......But a Judicial tribunal
         has nothing to do with the policy of any Act which it may be            H
602             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A               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
B     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
C     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
D     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 by petitioners.
             197. The Aadhaar architecture is to be examined in light of the
      statutory regime as in place. We have noticed the regulations framed
E     under Aadhaar Act, which clearly indicate that regulations brings in place
      statutory provisions for data protection, restriction on data sharing and
      other aspects of the matter. Several provisions of penalty on data breach
      and violation of the provisions of the Act and regulations have been
      provided.

F            198. We have no reason to doubt that the project will be
      implemented in accordance with the Act and the Regulations and there
      is no reason to imagine that there will be statutory breaches, which may
      affect the data security, data protection etc. In view of foregoing
      discussions, we are of the considered opinion that Statutory regime as
      delineated by the Aadhaar Act and the Regulations fulfills the three-fold
G     test as laid down in Puttaswamy (supra) and the law, i.e. Aadhaar Act
      gives ample justification for legitimate aim of the Government and the
      law being proportional to the object envisaged. The petitioners during
      their submissions have also attacked various provisions of Enrolment
      and Update Regulations, Authentication Regulations, Data Security
H     Regulations and Sharing of Information Regulations. All the above
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            603
                 [ASHOK BHUSHAN, J.]

regulations have been framed in exercise of power under Section 54 of         A
the Act on the matters covered by the Act. We having held that by
collection of data, its retention, storage, use and sharing, no Privacy
Right is breached, we are of the view that related regulations also pass
the muster of three-fold tests as laid down in K.Puttaswamy case. The
provisions of Act in the above regard having passed the muster of three-
                                                                              B
fold tests, the related regulations also cannot be held to breach Right of
Privacy. Thus, challenge to regulations relating to collection, storage,
use, retention and sharing fails and it is held that they do not violate
Constitutional Rights of Privacy. In result, we answer the Issue Nos. 3,
4 and 5 in following manner:-
Ans. 3, 4, 5:-                                                                C

        (i)   Collection of data, its storage and use does not violate
              fundamental Right of Privacy.
        (ii) Aadhaar Act does not create an architecture for pervasive
             surveillance.                                                    D
        (iii) Aadhaar Act and Regulations provides protection and safety
              of the data received from individuals.
    Issue Nos. 6 and 7      Whether Section 7 of Aadhaar Act is
                            unconstitutional?
                                                                              E
                            Whether 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            F
“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        G
        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
                                                                              H
604             SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A     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 provided that the State shall, in particular, strive to minimise
B
      the inequalities in income, and endeavour to eliminate inequalities in status,
      facilities and opportunities, not only amongst individuals but also amongst
      groups of people residing in different areas or engaged in different
      vocations.
            201. After enforcement of the Constitution almost all the
C     Governments worked towards the object of elimination of poverty and
      to empower marginal/poor section of the society. The endeavour of the
      Government was always to frame policies keeping in view the “little
      Indian” who is in the centre of all policies and governance.
             202. Section 7 of the Aadhaar Act is the most important provision
D     of the Aadhaar Act around which entire architecture of Aadhaar Act
      has been built. Section 7 is to the following effect:
              “7. 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
E             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
F             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.”
             203. The objects and reasons of the Act as noticed above as well
G     as the Preamble of the Act focus on targeted delivery of financial and
      other subsidies, benefits and services which are envisaged in Section 7.
      The petitioners challenge the constitutionality of Section 7. They submit
      that Section 7 seeks to render the constitutional and statutory obligations
      of the State to provide benefits, subsidies and services, conditional upon
      an individual parting with his or her biometric and demographic
H     information. An individual’s rights and entitlements cannot be made
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                  605
                 [ASHOK BHUSHAN, J.]

dependent upon an invasion of his or her bodily integrity and his or her            A
private information which the individual may not be willing to share with
the State. The bargain underlying Section 7 is an unconscionable,
unconstitutional bargain. An individual has constitutional right to 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
                                                                                    B
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            C
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
                                                                                    D
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 by several individuals and NGOs who after field verification brought
materials before this Court to support their submission regarding large
scale exclusion. It is further contended that State’s contention that Circular      E
dated 24.10.2017 has resolved implementation issued cannot be accepted.
The authentication system in the Aadhaar Act is probabilistic. Biometric
technology does not guarantee 100% accuracy and it is fallible, refers
UIDAI’s own Report on “Role of Biometric Technology in Aadhaar
Entrolment” (2012) has been made where Report stated that biometric
                                                                                    F
accuracy after accounting for the biometric failure to enrol rate, false
positive identification rate, and false negative identification rate, was
99.768% accuracy. For a population over 119.22 crore enrolled in
Aadhaar, it is a shocking admission of the fact that there are 27.65 lakh
people who are excluded from benefits linked to Aadhaar. It is contended
that validity of an act is to be judged not by its object or form, but by its       G
effect on fundamental rights. Mandatory authentication at the point of
use violates Article 21. It is contended that the Government has failed to
discharge its burden of proof under Article 21. The State has also failed
to satisfy the test of proportionality which makes Section 7
unconstitutional.
                                                                                    H
606             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A             204. The petitioners further submit that the claim of the Government
      that by Aadhaar authentication the State has been able to save 11 billion
      per annum is incorrect and without any basis. It is further submitted that
      massive savings under Mahatma Gandhi National Rural Employment
      Guarantee Scheme under Financial Benefits Accrued on account for
      DBT/Aadhaar since 2014 claims of substantial savings upto 2015-16
B
      the amount of reported savings is shown as Rs.3000 crores and upto
      2016-17 it is shown as Rs.11,741 crores. Referring to the claim of the
      Government that he submitted facts of job cards could be only 67,637
      were found to be job cards linked to more than one Aadhaar number.
      Thus, maximum saving for this period would be 127.88 crores compared
C     to the inflated figure of Rs.3000 crores. The Financial Benefits claimed
      under PAHAL scheme was Rs.14,672 crores which is not correct.
      Referring to Comptroller and Auditor General Report, it is pointed out
      that with respect to 2014-15, the real outcome of savings is only 1.33
      crores. He submits that major saving was on account of decrease in
      off-take of domestic subsidised cylinders of consumer and decrease in
D
      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
E     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
F     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
G     (TPDS)” dated March, 2005 which has been brought on record as
      Annexure-R-6 to the common additional affidavit on behalf of respondents
      notes following:
        i.    State-wise figure of excess Ration Cards in various states and
              the existence of over 1.52 crore excess Ration Cards issued
H             [Page 362 of CAA]
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              607
                [ASHOK BHUSHAN, J.]

  ii.    Exercise of fictitious households and    identification errors        A
         leading to exclusion of genuine beneficiaries.
  iii.   Leakage through ghost BPL Ration Cards found to be prevalent
         in almost all the states under study.[Pg. 369 of CAA)
  iv.    The Leakage of food grains through ghost cards has been
         tabulated and the percentage of such leakage on an All India          B
         basis has been estimated at 16.67% [Pg.370 of CAA].
  v.     It is concluded that a large part of the subsidised food grains
         were not reaching the target group.
       206. Similar reports regarding few subsidies have been referred         C
and relied.
      207. Learned Attorney General has also relied on the report
submitted by V.V. Giri National Labour Institute and sponsored by the
Department of Rural Development, Ministry of Rural Development,
Government of India which examined various aspects of National Rural           D
Employment Guarantee Scheme while studying the schedule of rates
for National Rural Employment Guarantee Scheme. In paragraph 12.8
(Annesure R-4) to the common additional affidavit on behalf of
respondents following has been stated:
            “There was great fraud in making fake cards, muster rolls
                                                                               E
         were not maintained properly, and work was not provided to job
         seekers sometimes. 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.”                                                F
       208. Another report dated 09.11.2012 of National Institute of
Public Finance and Policy’s “A Cost-benefit analysis of Aadhaar”
estimated that a leakage of approximately 12 percent is being caused to
the Government on account of ghost workers and manipulated muster
rolls. Thirteenth Finance Commission Report for 2010-2015 dated                G
December, 2000 in Chapter 12 states:
         “creation of a biometric-based unique identity for all residents in
         the country has the potential to address need of the government
         to ensure that only eligible persons are provided subsidies and
         benefits and that all eligible persons are covered.”                  H
608            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           209. 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
B     in PUCL vs. 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:
C             “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
D             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
E             with the online Aadhaar authentication at the time of food-grain
              delivery will take time. This is therefore proposed as Component
              II.
              12. As far as possible, the State Governments should be directed
              to link the process of computerisation of Component 2 with
F             Aadhaar registration. This will help in streamlining the process
              of biometric collection as well as authentication. The States/UTs
              may be encouraged to include the PDs related KYR+ field in
              the data collection exercise being undertaken by various Registrars
              across the country as part of the UID (Aadhaar) enrolment.”
            211. This Court again in the same proceeding passed another
G
      judgment on 16.03.2012 PUCL vs. Union of India, (2013) 14 SCC
      368 in which following was stated in paragraphs 2 and 4:
              “2. There seems to be a general consensus that computerisation
              is going to help the public distribution system in the country in a
              big way. In the affidavit it is stated that the Department of Food
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                609
                 [ASHOK BHUSHAN, J.]

        and Public Distribution has been pursuing the States to undertake         A
        special drive to eliminate bogus/duplicate ration cards and as a
        result, 209.55 lakh ration cards have been eliminated since 2006
        and the annual saving of foodgrain subsidy has worked out to
        about Rs 8200 crores per annum. It is further mentioned in the
        affidavit that end-to-end computerisation of public distribution
                                                                                  B
        system comprises creation and management of digitised
        beneficiary database including biometric identification of the
        beneficiaries, supply chain management of TPDS commodities
        till fair price shops.
        4. In the affidavit it is further mentioned that the Government of
        India has set up a task force under the Chairmanship of Mr                C
        Nandan Nilekani, Chairman, UIDAI, to recommend, amongst
        others, an IT strategy for the public distribution system. We
        request Mr Nandan Nilekani to suggest us ways and means by
        which computerisation process of the public distribution system
        can be expedited. Let a brief report/affidavit be filed by Mr             D
        Nandan Nilekani within four weeks from today.”
       212. As noted above the figures as claimed by the respondents
regarding benefits after implementation of Aadhaar scheme in the
MGNREGA and PDS etc. are refuted by the petitioners. Petitioners’
case is that amounts of savings which are claimed are not correct and at          E
best there was only meager benefit of savings from the implementation
of the scheme. We need not to enter into the issue regarding 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.                                                                       F

        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 vs.
Administrator, Union Territory of Delhi and others, 1981 (1) SCC
608, while elaborating on right of life under Article 21, held that the right     G
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               H
610            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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
B             necessary social services, and the right to security in the event
              of unemployment, sickness, disability, widowhood, old age or other
              lack of livelihood in circumstances beyond his control.”
            215. The English author, JOHN BERGER said:

C             “The poverty of our century is unlike that of any other. It is not,
              as poverty was before, the result of natural scarcity, but of a set
              of priorities imposed upon the rest of the world by the rich.
              Consequently, the modern poor are not pitied...but written off as
              trash.”

D            216. The identification of the poor, as was referred by John
      Berger is the first step to realise the UN Declaration of Human Rights
      as well as the Fundamental Rights guaranteed under the Constitution of
      India. The Aadhaar Act brings into existence a process of identification
      which is more accurate as compared to other identity proofs.
             217. At this stage, we need to notice one more submission which
E
      was raised by the learned Attorney General. It has been submitted by
      the learned Attorney General that subsidies and benefits under Section 7
      of the Aadhaar Act are traceable to Article 21. It is submitted that if the
      rights which are sought to be realised by means of Section 7 are juxtaposed
      against the right of privacy, the former will prevail over the latter. The
F     issue is as to whether the State by enlivening right to food and shelter
      envisaged under Article 21 encroach upon the right of privacy? There
      cannot be a denial that there may be inter se conflict between fundamental
      rights recognised by the Constitution in reference to a particular person.
      The Court has to strive a balance to leave enough space for exercise of
      both the fundamental rights.
G
             218. It cannot be accepted that while balancing the fundamental
      rights one right has to be given preference. We may notice that privacy
      judgment i.e. Puttaswamy case has noticed and already rejected this
      argument raised by the learned Attorney General in paragraph 266 in
      the following words:
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               611
                 [ASHOK BHUSHAN, J.]

        “266. The Attorney General argued before us that the right to            A
        privacy must be forsaken in the interest of welfare entitlements
        provided by the State. In our view, the submission that the right
        to privacy is an elitist construct which stands apart from the
        needs and aspirations of the large majority constituting the rest
        of society, is unsustainable. This submission betrays a
                                                                                 B
        misunderstanding of the constitutional position. Our Constitution
        places the individual 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            C
        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       D
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            E
aspect of the matter as has been contended by the respondents that in
case where there is biometric mis-match of a person even possession of
an Aadhaar number is treated sufficient for delivery of subsidies and
benefits. Thus, physical possession of Aadhaar card itself may mitigate
biometric mis-match. However, in case of mis-match instruments are               F
there to accept other proof of identity, the respondents have referred to
Circular dated 24.10.2017 issued by UIDAI. The Circular dated
24.10.2017 has been criticised by the petitioners stating that violation of
right cannot be left to vagaries of administration. There cannot be any
dispute to the above propositions. It is the obligation of the State to ensure
that there is no violation of fundamental rights of a person. Section 7 is       G
an enabling provision which empowers the State Government to require
that such individual undergo authentication for receipt of a subsidy, benefit
or service but neither Section 7 nor orders issued by the Central
Government and State Government can be read that in the event
authentication of a person or beneficiary fails, he is not to be provided        H
612             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     the subsidies and benefits or services. The provision is couched as an
      enabling provision but it cannot be read as a provision to negate giving
      subsidies, benefits or services in the event of failure of authentication.
      We are of the view that Circular dated 24.10.2017 which fills a gap and
      is a direction facilitating delivery of benefits and subsidies does not breach
      by provisions of the Act.
B
              220. Now, we come to arguments of exclusion as advanced by
      the petitioners in support of their submission that exclusion makes Section
      7 arbitrary and violative of Articles 14 and 21. From the material brought
      on record by the parties, we have no reason to doubt that there has been
      denial to few persons due to failure of authentication. There is ample
C     material on record to indicate that prior to enforcement of Aadhaar
      Scheme there had been large number of denial of benefits and subsidies
      to real beneficiaries due to several reasons as noted above. Functioning
      of scheme formulated by the Government for delivery of benefits and
      subsidies to deserving persons is a large scale scheme running into every
D     nook and corner of the country. When such scheme of Government is
      implemented, it is not uncommon that there may be shortcomings and
      some denial. There is no material on record to indicate that as compared
      to non-receipt of eligible beneficiaries prior to enforcement of the Act,
      there 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
E     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
F     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
G     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 Regulations under Sections 53 and 54 of
      the Aadhaar Act respectively and exclusions have to be taken care by
H     exercising the power under Section 53 by the Central Government and
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              613
                 [ASHOK BHUSHAN, J.]

under Section 54 by the UIDAI to remedy such shortcomings and denial.           A
We are sure that both the Central Government and UIDAI shall advert
to the exclusionary factors.
       221. We may also notice a judgment of the US Supreme Court in
Otis R. Bowen, Secretary of Health and Human Services, et al. vs.
Stephen J. Roy et al., 476 US 693 (1986). The US Supreme Court                  B
held that statutory requirement that a state agency utilise Social Security
numbers in administering the programs in question does not violate the
Free Exercise Clause. The appellants applied and received benefits
under the Aid to Families with Dependent Children program and the
Food Stamp program. They, however, refused to comply, with the
requirement that participants in these programs furnish their state welfare     C
agencies with the Social Security numbers of the members of their
household as a condition of receiving benefits. Appellants had contended
that obtaining a Social Security number for their 2-year-old daughter,
would violate their Native American religious beliefs. On refusal to give
Social Number, benefits payable to the appellants were terminated. The          D
claim of the appellants was dismissed. The challenge raised by the
appellants was noticed in the following words:
        “Appellees raise a constitutional challenge to two features of
        the statutory scheme here. 4 They object to Congress’ requirement
        that a state AFDC plan “must . . . provide (A) that, as a condition     E
        of eligibility under the plan, each applicant for or recipient of aid
        shall furnish to the State agency his social security account
        number.” 42 U.S.C. § 602(a)(25) (emphasis added). They also
        object to Congress’ requirement that “such State agency shall
        utilize such account numbers . . . in the administration of such
        plan.” Ibid. (emphasis added). 5 We analyze each of these               F
        contentions, turning to the latter contention first.”
      222. The U.S. Supreme Court upheld the requirement of providing
of Social Security number. Following has been observed:
        “The general governmental interests involved here buttress this         G
        conclusion. Governments today grant a broad range of benefits;
        inescapably at the same time the administration of complex
        programs requires certain conditions and restrictions. Although
        in some 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          H
614            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A            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.
B            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
C            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
D            in general, the Government meets its burden when it demonstrates
             that a challenged requirement for governmental benefits, neutral
             and uniform in its application, is a reasonable means of promoting
             a legitimate public interest.”
             223. Another case of the Appellate Division of the Supreme Court
E     of the State of New York which needs to be noticed is in the matter of
      Buchanan v. Wing, 664 N.Y. 2d 865. In the above case petitioners
      were recipients of Aid to Families with Dependent Children, the facts of
      the case have been noticed in the following words:
             “Petitioners and their four minor children are recipients of Aid to
F            Families with Department Children (hereinafter ADC) (Social
             Services Law 343 et seq.) and food stamps from the Broome
             County Department of Social Services (hereinafter the
             Department). In February 1996, petitioners received notice from
             the Department that they were to participate in an identity
             verification procedure known as the automated finger imaging
G            system (hereinafter AFIS) as a condition of eligibility for benefits
             required by 18 NYCRR 351.2(a)(245 A.D. 2d 635). Petitioners
             responded that they would not participate because of their
             religious convictions. Respondent Commissioner of the
             Department thereafter discontinued their ADC and food stamp
H            entitlements for failure to comply.”
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                    615
                 [ASHOK BHUSHAN, J.]

       224. The petitioners refused to participate in an identify verification        A
by procedure known as automated finger imaging system which was a
condition of eligibility for benefits. Upholding the process of verification
by finger imaging following was laid down:
        “We have examined petitioners’ constitutional claims and find
        them to be without merit. In our view, petitioners’ failure to                B
        articulate a viable claim that they are being required to participate
        in an invasive procedure that is prohibited by their religious beliefs
        is dispositive of their arguments claiming a violation of their
        freedom to exercise their religion pursuant to the Federal and
        State Constitutions (US Const 1st Amend; NY Const, art I, 3).
        We are also unpersuaded by petitioners’ contention that the                   C
        Department violated NY Constitution, article XVII, 1 (which
        provides that aid and care of the needy are public concerns and
        shall be provided by the State) by discontinuing their public
        assistance benefits. Since petitioners cannot be classified as needy
        until such time as they are finger imaged to determine whether                D
        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        E
        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,                    F
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           G
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 the following effect:
        “[11] The appellants’ principal contention on appeal is that the
        federal and state regulations requiring dependent children to                 H
616            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A            acquire and submit social security account numbers as a condition
             of eligibility for AFDC benefits are statutorily invalid as being
             inconsistent with and not authorized by the Social Security Act.
             We find the arguments advanced in support of this contention to
             be without merit and hold that the challenged regulations
             constitute a legitimate condition of eligibility mandated by the
B
             Congress under the Social Security Act. Accord, Chambers v.
             Klein, 419 F. Supp. 569 (D.N.J. 1976), aff’d mem., 564 F.2d 89
             (3d Cir. 1977); Green v. Philbrook, 576 F.2d 440 (2d Cir. 1978);
             Arthur v. Department of Social and Health Services, 19 Wn.
             App. 542, 576 P.2d 921 (1978). We therefore conclude that the
C            district court properly dismissed the appellants’ statutory invalidity
             allegations for failure to state a claim upon which relief could be
             granted.”
            226. The appellant had also contended that disclosure of social
      security account number violates their constitutional rights to privacy.
D     Said argument was rejected. While rejecting the argument following
      was stated in paragraph 20:
             “[20] Finally, the appellants maintain that the social security
             account number disclosure requirement violates their
             constitutional rights to privacy and to equal protection of the law.
E            We disagree. The constitutional guarantee of the right to privacy
             embodies only those personal rights that can be deemed
             “fundamental” or “implicit in the concept of ordered liberty.”
             Roe v. Wade, : 410 U.S. 113, 152, 93 S.Ct. 705, 726, 35 L.Ed.2d
             147 (1973). It is equally well-settled that “[w]elfare benefits are
             not a fundamental right . . . .” Lavine v. Milne, 424 U.S. 577,
F            584, n. 9, 96 S.Ct. 1010, 1015, 47 L.Ed.2d 249 (1976).
             Accordingly, we regard the decision of Mrs. McElrath whether
             or not to obtain social security account numbers for her two
             minor children in order to receive welfare benefits as involving
             neither a fundamental right nor a right implicit in the concept of
G            ordered liberty. Chambers v. Klein, 419 F. Supp. 569, 583 (D.N.J.
             1976), aff’d mem. 564 F.2d 89 (3d Cir. 1977). This case is not
             concerned with a decision impacting the privacy of the appellants
             on the magnitude of criminal sanctions or an absolute prohibition
             on the appellants’ conduct. See, e. g., Griswold v. Connecticut, :
             381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.652d 510 (1965); Eisenstadt
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             617
                 [ASHOK BHUSHAN, J.]

        v. Baird,: 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349 (1972).         A
        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
                                                                               B
        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            C
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         D
Schedule of the Constitution submits that Aadhaar Scheme and its
authentication for benefits, subsidies and services militate against the
above Constitution provision and hence are ultra vires to the Constitution.
Article 243G deals with powers, authority and responsibilities of
Panchayats, which is to the following effect:-                                 E
        243G. Powers, authority and responsibilities of
        Panchayats:- Subject to the provisions of this Constitution the
        Legislature of a State may, by law, endow the Panchayats with
        such powers and authority and may be necessary to enable them
        to function as institutions of self-government and such law may        F
        contain provisions for the devolution of powers and responsibilities
        upon Panchayats, at the appropriate level, subject to such
        conditions as may be specified therein, with respect to—
        (a) the preparation of plans for economic development and social
        justice;                                                               G
        (b) the implementation of schemes for economic development
        and social justice as may be entrusted to them including those in
        relation to the matters listed in the Eleventh Schedule.
      229. Article 243G(b) refers to Eleventh Schedule to the
Constitution. Eleventh Schedule contains list of several matters. Shri         H
618            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     Subramanium relies on Item No. 11, 12, 16, 17, 23, 25 and 28, which are
      as under:-
        11. Drinking Water.
        12. Fuel and Fodder.
B       16. Poverty alleviation programme.
        17. Education, including primary and secondary schools.
        23. Health and Sanitation, including hospitals, primary health centres
            and dispensaries.
        25. Women and child development.
C
        28. Public distribution system.
             230. Article 243G is an enabling provision, which enable the State
      Legislature, by law, to endow the Panchayats with such powers and
      authorities as may be necessary to enable them to function as institutions
D     of self-government. The Items on which State, by law, can endow
      Panchayats in Eleventh Schedule are items to deal with subjects
      enumerated therein. For example, Item No. 16 deals with Poverty
      alleviation programme and Item No. 28 deals with Public Distribution
      System. State is fully competent to make laws to authorise the Panchayats
      to take over all the matters enumerated in Eleventh Schedule. The
E
      question to be considered is as to whether the Aadhaar Act in any manner
      militate with Constitutional provisions of Article 243G. The Aadhaar Act
      is an Act enacted by Parliament, which is referable to Entry 97 of List I.
      The Aadhaar Act has been enacted to provide for efficient, transparent,
      and targeted delivery of subsidies, benefits and services, the expenditure
F     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
G     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
H     and Another Vs. Zila Parishad, Ghaziabad and Another, (2013) 11
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             619
                 [ASHOK BHUSHAN, J.]

SCC 783. In the above case, provisions of Article 243G came to be              A
considered in reference to public distribution orders issued by the State
Government in exercise of delegated powers under Essential Commodities
Act, 1955. The Central Government in exercise of power under Section
3 of the Essential Commodities Act, the Government of U.P. issued an
order dated 10.8.1999, conferring the power to allot and cancel the fair
                                                                               B
price shops in rural areas, with certain guidelines, on the Gram
Panchayats. Subsequently, the State Government withdrew that order
and reinforced the earlier policy dated 03.07.1990 under which the power
was vested with the District Magistrate or an authority designated by
him to allot or cancel the licenses for Fair Price Shops. The Central
Government, in exercise of power under Section 3 of the Essential              C
Commodities Act, issued an order dated 31.8.2001, wherein its powers
were delegated to State Government. State Government, in pursuance
thereof, issued an order designating the officers of the District level,
viz., District Magistrate, Sub-Divisional Magistrate, District Supply
Officer to ensure the proper supply and distribution of such commodities.
                                                                               D
Zila Parishad, Ghaziabad filed a Writ Petition in the High Court challenging
the Order dated 13.01.2000 by which the power was withdrawn from
the Gram Panchayats. The Writ Petition was allowed by the High Court
against which State of Uttar Pradesh filed an appeal. The submission
was raised before this Court on behalf of the writ petitioner that denuding
the power from Panchayats will be against the constitutional provision         E
of Article 243G. Such argument on behalf of petitioner has been noticed
in Paragraph 14. This Court after considering the provisions of Article
243G and other relevant provisions has laid down in Paras 23 and 24:-
        “23. The High Court has considered the nature of the
        aforesaid constitutional provision and held as under: (Zila            F
        Panchayat case1, AWC pp. 3981-82, para 16)
          “16. In our opinion, this provision is only an enabling
          provision. It enables the Legislature of a State to endow
          the Panchayats with certain powers. … Hence, the
          Legislature of a State is not bound to endow the Panchayats          G
          with the powers referred to Article 243-G, and it is in its
          discretion to do so or not. At any event there is no mention
          of the public distribution system in Article 243-G of the
          Constitution.”

                                                                               H
620            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A             Thus, it is evident that the High Court has taken a view that
              the provision of Article 243-G is merely an enabling provision,
              and it is not a source of legislation. This view seems to be in
              consonance with the law 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
B
              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
C             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
D
              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
E             endow functions and devolve powers and responsibilities to
              local bodies by enacting relevant laws. The local bodies can
              only implement the schemes entrusted to them by the State.”
            231. This Court in the above case has reiterated that Article 243G
      read with Eleventh Schedule is not a source of legislative power, and it is
F     only an enabling provision that empowers a State to endow functions
      and devolve powers and responsibilities to local bodies by enacting
      relevant laws. We, thus, are unable to accept the submission of Shri
      Gopal Subramanium that Aadhaar Act is ultra vires to Article 243G and
      Eleventh Schedule to the Constitution.
G           232. One more submission of the petitioners which needs to be
      considered is regarding probabilistic nature of biometric solution. We
      proceed on premise that Aadhaar structure is probabilistic, the petitioners
      themselves have referred to UIDAI Report where biometric accuracy
      has been stated to be 99.768%. Stephen Hawkin in his book: “God Created
H     The Integers” states:
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                  621
                 [ASHOK BHUSHAN, J.]

        “Over the centuries, the efforts of these mathematicians have               A
        helped the human race to achieve great insight into nature, such
        as the realisation that the earth is round, that the same force that
        causes an apple to fall here on earth is also responsible for the
        motions of the heavenly bodies, that space is finite and not eternal,
        that time and space are intertwined and warped by matter and
                                                                                    B
        energy, and that the future can only be determined
        probabilistically. Such revolutions in the way we perceive the
        world have always gone hand in hand with revolutions in
        mathematical thought. Isaac Newton could never have
        formulated his laws without the analytic geometry of Rene
        Descartes and Newton’s own invention of calculus. It is hard to             C
        imagine the development of either electrodynamics or quantum
        theory without the methods of Jean Baptiste Joseph Fourier or
        the work on calculus and the theory of complex functions
        pioneered by Carl Friedrich Gauss and Augustin Louis Cauchy-
        and it was Henri Lebesgue’s work on the theory of measure
                                                                                    D
        that enabled John von Neumann to formulate the rigorous
        understanding of quantum theory that we have today. Albert
        Einstein could not have completed his general theory of relativity
        had it not been for the geometric ideas of Bernhard Riemann.
        And practically all of modern science would be far less potent
        (if it existed at all) without the concepts of probability and statistics   E
        pioneered by Pierre-Simon Laplace.”
       233. The science and technology keeps on changing with pace of
time. A scientific 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                         F
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                             G
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.                                                       H
622             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A           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 A ct is
B                            liable to be struck down?

             234. The ground to challenge Section 29 is that it permits sharing
      of identity information. It is submitted that sharing of identity information
      is breach of Right of Privacy. Section 29 is a provision, which contains
      restrictions on sharing information as is clear from the heading of the
C     section. Section 29 sub-section (1) contains prohibition on sharing of
      any core biometric information collected or created under this Act. Section
      29 for ready reference is extracted as below:-
              29. Restriction on sharing information. (1) No core biometric
              information, collected or created under this Act, shall be—
D
                (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.
              (2) The identity information, other than core biometric information,
E             collected or created under this Act may be shared only in
              accordance with the provisions of this Act and in such manner
              as may be specified by regulations.
              (3) No identity information available with a requesting entity shall
              be—
F               (a) used for any purpose, other than that specified to the
                individual at the time of submitting any identity information for
                authentication; or
                (b) disclosed further, except with the prior consent of the
                individual to whom such information relates.
G
              (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.

H
            JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               623
                          [ASHOK BHUSHAN, J.]

                235. Sub-section (2) permits sharing of identity information, other       A
         than core biometric information, only in accordance with the provisions
         of this Act and in such manner as may be specified by regulations.
         Further sub-section (3) prohibits requesting entity to use identity
         information for any purpose other than that specified to the individual or
Act is   to disclose any information without the consent of individual. Sub-section
                                                                                          B
         (4) provides that no Aadhaar number or core biometric information shall
         be published, displayed or posted publicly, except for the purposes as
         may be specified by regulations. The attack on Section 29 that it permits
         sharing of information is thus wholly misconceived. The objective of the
         Act is to protect the information and privacy of an individual and so the
         Section is not liable to be struck down on the specious ground that it           C
         permits sharing of the information. Further sub-section (3) engraft a
         provision 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
                                                                                          D
         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          E
         - 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.
                                                                                          F
                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 to violate any of the constitutional rights of a person. Objective
         of the Act is to put restrictions on the sharing information, which also is
         a legitimate State aim. The provision under Section 29 which permits
         sharing of identity information except core biometric information in             G
         accordance with the Act and Regulations cannot be said to be
         disproportionate nor unreasonable. Legislature can very well enumerates
         circumstances and conditions where sharing of information becomes
         necessary. One of the circumstances where sharing of the information
         is specifically engrafted in sub-section(2) of Section 33, which provides        H
624            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     that nothing contained in sub-section (3) of Section 29 shall apply in
      respect of any disclosure of information, including identity information
      or authentication records, made in the interest of national security in
      pursuance of a direction of an officer not below the rank of Joint
      Secretary to the Government of India. Thus, the circumstances which
      can contemplate for sharing information is reasonable and proportionate.
B
      We, thus, held that provisions of Section 29 is constitutional and does not
      deserves to be struck down. Issue No. 8 is answered in the following
      manner:-
            Ans.8:- Provisions of Section 29 is constitutional and does not
                    deserves to be struck down.
C
         Issue No.9         Whether Section 33 is Constitutional?

            237. Section 33 of the Aadhaar Act, 2016 is as follows:

D             “33. Disclosure of information in certain cases.-(1) Nothing
              contained in sub-section (2) or sub-section (5) of section 28 or
              sub-section (2) of section 29 shall apply in respect of any
              disclosure of information, including identity information or
              authentication records, made pursuant to an order of a court not
              inferior to that of a District Judge:
E
                 Provided that no order by the court under this sub-section
              shall be made without giving an opportunity of hearing to the
              Authority.
              (2) Nothing contained in sub-section (2) or sub-section (5) of
              section 28 and clause (b) of sub-section (1), sub-section (2) or
F
              sub-section (3) of section 29 shall apply in respect of any
              disclosure of information, including identity information records,
              made in the interest of national security in pursuance of a direction
              of an officer not below the rank of Joint Secretary to the
              Government of India specially authorised in this behalf by an
G             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
H             Electronics and Information Technology, before it takes effect:
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                625
                 [ASHOK BHUSHAN, J.]

            Provided further that any direction issued under this sub-            A
        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        B
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.      C
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 passing an order by the court which amply protects
the interest of a person whose data is to be disclosed. An order of the
court not inferior to that of a District Judge for disclosure of information
itself is an ample protection to that, for no unreasonable purpose data           D
shall be disclosed. Attacking on sub-section (2) of Section 33, it is
contended that although (i)disclosure of information has been permitted
in the interest of the national security but there is no definition of national
security, (ii) there is no independent oversight disclosure of such data on
the ground of security, (iii)the provision is neither fair nor reasonable.        E
Section (2) of Section 33 is disproportionate and unconstitutional.
        240. Section 33 sub-section (2) contains two safeguards. Firstly,
disclosure of information is to be made in the interest of national security
and secondly, in pursuance of a direction of an officer not below the
rank of Joint Secretary to the Government, who is specially authorised            F
in this behalf by an order of the Central Government. National security,
thus, has to be determined by a higher officer who is specifically authorised
in this behalf. This Court in Ex. Armymen’s Protection Services P.
Ltd. Vs. Union of India (UOI) and Ors., 2014 (5) SCC 409, has held
that what is in the interest of national security is not a question of law but
that it is matter of a policy. Following was held in paragraphs 16 and 17:        G
        “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
        whether something is in the interest of State or not. It should be
        left to the Executive. To quote Lord Hoffman in Secretary of
                                                                                  H
626            SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A             State for the Home Department v. Rehman (2003) 1 AC 153:...in
              the matter of national security is not a question of law. It is a
              matter of judgment and policy. Under the Constitution of the
              United Kingdom and most other countries, decisions as to whether
              something is or is not in the interest of national security are not a
              matter for judicial decision. They are entrusted to the executive.
B
              17. Thus, in a situation of national security, a party cannot insist
              for the strict observance of the principles of natural justice. In
              such cases it is the duty of the Court to read into and provide for
              statutory exclusion, if not expressly provided in the rules governing
              the field. Depending on the facts of the particular case, it will
C             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
D             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
E     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”
F             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 within the social Community
              and are dependent upon communication. Information, even if
              related to individual persons, represents a reflection of societal
              reality that cannot be exclusively assigned solely to the parties
G             affected. The Basic Law, as has been emphasized several times
              in the case law of the Federal Constitutional Court, embodies in
              negotiating the tension between the individual and the Community
              a decision in favour of civic participation and civic
              responsibility(see BverfGE 4, 7 [15] ; 8, 274 [329]; 27, 344 [351
H             and 352]; 33, 303 [334]; 50, 290 [353]; 56, 37 [49]).
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             627
                 [ASHOK BHUSHAN, J.]

Individuals must therefore in principle accept restriction on their right to   A
informational self-determination in the overriding general public interest.”
       242. Another judgment of European Commission of Human Rights
in M.S. against Sweden was a case that applicant has complained that
copies of her medical records containing information on treatment have
been forwarded by the clinic without her information to the Insurance          B
Co. The case of the applicant was noticed in paragraph 39 which is to
the following effect:
        “39. The applicant submits that the women’s clinic’s submission
        of copies of her medical records to the Social Insurance Office
        without her knowledge or consent interfered with her right to          C
        respect for her private life. She maintains that the information
        contained in these records were of a highly sensitive and private
        nature. Allegedly, she could not anticipate, when she claimed
        compensation from the Office, that information on the abortion
        performed several years after alleged back injury would be
        forwarded to the Office. She further refers to the fact that the       D
        information in question is not protected by the same level of
        confidentiality at the Office as at the clinic.”
       243. The Commission held that information was rightly submitted
to the Insurance Co. in accordance with law. It is also relevant to refer
the judgment of this Court in People’s Union for Civil Liberties(PUCL)         E
v. Union of India, 1997 (1) SCC 301, where the writ petition was filed
under Article 32 alleging serious invasion of an individual’s privacy on
the account of Telephone-tapping. The Court adverted to the Indian
Telegraph Act, 1885 and the Rules framed thereunder. The Court has
noticed that Section 5(2) of the Telegraph Act permits the interception        F
of messages in accordance with the said 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.                 G
        “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          H
628             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


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
B     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 is reasonable and in the public
C     interest.
             246. We are satisfied that the provision fulfills three fold test as
      laid down in Puttaswamy case. There are no grounds to declare Section
      33 as unconstitutional.
             247. We also need to advert to one of the submissions of the
D     petitioner that permitting disclosure of information for police investigation
      violates the protection against self-incrimination as provided under Article
      20 sub-clause (3). It is true that under Section 33 the Court may order
      for disclosure of information even for a police investigation. But
      information so received in no manner can be said to violate the protection
E     given under Article 20 sub-clause (3). The basic information which are
      with the UIDAI are demographic and biometric information. In this
      context, reference is made to 11-Judge Constitution Bench judgment of
      this Court in State of Bombay vs. Kathi KALU Oghad, AIR 1961 SC
      1808. The Constitution Bench had occasion to consider sub-clause (3)
      of Article 20 of the Constitution. In the above case from the accused
F     who was charged under Section 302/34 IPC during the investigation
      prosecution has obtained three specimen of hand-writing which were
      compared by his hand-writing which was part of the evidence. A question
      was raised as to the admissibility of the specimen of hand-writing, it was
      contended that use of specimen of hand-writing violated protection under
G     Article 20(3). This Court in paragraph 16 laid down following:
              (16) In view of these considerations, we have come to the
              following conclusions :-
                (1) An accused person cannot be said to have been compelled
                to be a witness against himself simply because he made a
H               statement while in police custody, without anything more. In
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              629
                 [ASHOK BHUSHAN, J.]

          other words, the mere fact of being in police custody at the          A
          time when the statement in question was made would not, by
          itself, as a proposition of law, lend itself to the inference that
          the accused was compelled to make the statement, though that
          fact, in conjunction with other circumstances disclosed in
          evidence in a particular case, would be a relevant consideration
                                                                                B
          in an enquiry whether or not the accused person had been
          compelled to make the impugned statement.
          (2) The mere questioning of an accused person by a police
          officer, resulting in a voluntary statement, which may ultimately
          turn out to be incriminatory, is not ‘compulsion’.
                                                                                C
          (3) ‘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.
                                                                                D
          (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         E
          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         F
          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
                                                                                G
          character of an accused person at the time he made the
          statement. It is not enough that he should become an accused,
          any time after the statement has been made.”
       248. From what has been held in the above case, it is clear that
‘to be a witness’ is not equivalent to ‘furnishing evidence’ in its widest
                                                                                H
630            SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A     significance. The use of information retained by the UIDAI given by the
      order of the Court under Section 33 cannot be said to be violating the
      protection as contained under Article 20(3). Thus, Article 20(3) is not
      violated by disclosure of information under Section 33. In view of the
      foregoing discussion, we hold that Section 33 is constitutional.
B            249. One of the decisions on which Shri K.V. Viswanathan has
      placed reliance in support of his submission regarding violation of Article
      20(3) as well as Article 21 of the Constitution is Selvi and others vs.
      State of Karnataka, 2010(7) SCC 263. In the above case this Court had
      considered as to whether certain scientific techniques, namely,
      narcoanalysis, polygraph examination and the Brain Electrical Activation
C     Profile (BEAP)test for the purpose of improving investigation efforts in
      criminal cases violate sub-clause (3) of Article 20 as well as Article 21.
      The legal issues and questions of law have been noted in paragraphs 2
      and 11 to the following effect:
                  “2. The legal questions in this batch of criminal appeals relate
D             to the involuntary administration of certain scientific techniques,
              namely narcoanalysis, polygraph examination and the Brain
              Electrical Activation Profile (BEAP) test for the purpose of
              improving investigation efforts in criminal cases. This issue has
              received considerable attention since it involves tensions between
E             the desirability of efficient investigation and the preservation of
              individual liberties. Ordinarily the judicial task is that of evaluating
              the rival contentions in order to arrive at a sound conclusion.
              However, the present case is not an ordinary dispute between
              private parties. It raises pertinent questions about the meaning
              and scope of fundamental rights which are available to all citizens.
F             Therefore, we must examine the implications of permitting the
              use of the impugned techniques in a variety of settings.
                 11. At this stage, it will be useful to frame the questions of
              law and outline the relevant sub-questions in the following manner:

G
                 I.Whether the involuntary administration of the impugned
              techniques violates the ‘right against self-incrimination’
              enumerated in Article 20(3) of the Constitution?

H
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               631
                [ASHOK BHUSHAN, J.]

          I-A. Whether the investigative use of the impugned techniques         A
       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             B
       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       C
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       D
       and the BEAP test should also be treated as `personal testimony’,
       since they are a means for `imparting personal knowledge about
       relevant facts’. Hence, our conclusion is that the results obtained
       through the involuntary administration of either of the impugned
       tests (i.e. the narcoanalysis technique, polygraph examination           E
       and the BEAP test) come within the scope of `testimonial
       compulsion’, thereby attracting the protective shield of Article
       20(3). “
      251. In so far as question of violation of Article 21 is concerned,
this Court, in paragraphs 225 and 226 has held:                                 F
           “225. So far, the judicial understanding of privacy in our country
       has mostly stressed on the protection of the body and physical
       spaces from intrusive actions by the State. While the scheme of
       criminal procedure as well as evidence law mandates interference
       with physical privacy through statutory provisions that enable
                                                                                G
       arrest, detention, search and seizure among others, the same
       cannot be the basis for compelling a person `to impart personal
       knowledge about a relevant fact’. The theory of interrelationship
       of rights mandates that the right against self-incrimination should
       also be read as a component of `personal liberty’ under
       Article 21. Hence, our understanding of the `right to privacy’           H
632             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A             should account for its intersection with Article 20(3). Furthermore,
              the `rule against involuntary confessions’ as embodied in Sections
              24, 25, 26 and 27 of the Evidence Act, 1872 seeks to serve both
              the objectives of reliability as well as voluntariness of testimony
              given in a custodial setting. A conjunctive reading of Articles
              20(3) and 21 of the Constitution along with the principles of
B
              evidence law leads us to a clear answer. We must recognise the
              importance of personal autonomy in aspects such as the choice
              between remaining silent and speaking. An individual’s decision
              to make a statement is the product of a private choice and there
              should be no scope for any other individual to interfere with such
C             autonomy, especially in circumstances where the person faces
              exposure to criminal charges or penalties.
                 226. Therefore, it is our considered opinion that subjecting a
              person to the impugned techniques in an involuntary manner
              violates the prescribed boundaries of privacy. Forcible
D             interference with a person’s mental processes is not provided
              for under any statute and it most certainly comes into conflict
              with the ‘right against self-incrimination’. However, this
              determination does not account for 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
E             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
F     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
G     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 petitioners. Answer to question No.3 is in following Manner:
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            633
                 [ASHOK BHUSHAN, J.]

      Ans.9:     Section 33 cannot be said to be unconstitutional as it       A
                 provides for the use of Aadhaar data base for police
                 investigation nor it can be said to violate protection
                 granted under Article 20(3).
  Issue No.10       Whether Section 47 of the Aadhaar Act is
                    Unconstitutional?                                         B
       253. The Petitioner submits that Section 47 of the Aadhaar Act is
unconstitutional since it does not allow an individual who is victim of
violation of Aadhaar Act to initiate a criminal process. It is submitted
that the person who is victim of an offence under the Aadhaar Act has
no remedy to file a complaint and Section 47 of the Act restrict the filing   C
of complaint only by Authorities or Officers or persons authorised by it.
       254. The above submission is refuted by the respondent that Section
47 has a rationale. The offences and penalties under Chapter VII of the
Aadhaar Act are all intended to maintain the purity and integrity of CIDR
and the entire enrolment storage in CIDR and authentication exercise          D
can only be efficiently and effectively handled by UIDAI. Thus,
jurisdiction to submit a complaint has been conferred to UIDAI which is
the most entrusted entity for maintaining the purity of Aadhaar Scheme
and is also affected by offences committed under the Aadhaar Act.
Section 47 provides as follows:
                                                                              E
        “47. Cognizance of Offence - (1) No court shall take cognizance
        of any offence punishable under this Act, save on a complaint
        made by the Authority or any officer or person authorised by it.
         (2) No court inferior to that of a Chief Metropolitan Magistrate
        or a Chief Judicial Magistrate shall try any offence punishable
        under this Act.”                                                      F
       255. Provisions akin to Section 47 are found in most of Statutes
which Statutes defines offences under the Statute and provide penalty
and punishment thereunder. Following are some of the Statues which
contains a provision akin to Section 47 of Aadhaar Act:
        “1) Section 22 of Mines and Minerals(Development &                    G
        Regulation) Act, 1957 – No Court shall take cognizance of
        any offence punishable under this Act or any rules made
        thereunder except upon complaint in writing made by a person
        authorised in this behalf by the Central Government or the State
        Government.                                                           H
634    SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     2) Section 34 of the Bureau of Indian Standards Act, 1986 -
      No Court shall take cognizance of an offence punishable under
      this Act, save on a complaint 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
B
      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.
C
      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.
D     5) Section 57(1) of Petroleum and Natural gas Regulatory
      Board Act, 2007 – 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.

E     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 generally or specially authorised
      in writing in this behalf by the Reserve Bank, or as the case may
F     be, the National Bank and no court other than that of a
      Metropolitan Magistrate or a Judicial Magistrate of the first class
      or any court superior thereto shall try any such offence.
      7) Section 19 of Environment (Protection) Act, 1986 – No
      court shall take cognizance of any offence under this Act except
G     on a complaint made by – (a) the Central Government or any
      authority or officer authorised in this behalf by that Government,
      or (b) any person who has given notice of not less than sixty
      days, in the manner prescribed, of the alleged offence and of his
      intention to make a complaint, to the Central Government or the
      authority or officer authorised as aforesaid.
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            635
                 [ASHOK BHUSHAN, J.]

         8) Section 43 of The Air (Prevention and Control of                  A
         Pollution) Act, 1981 – (1) No Court shall take cognizance of
         any offence under this Act except on a complaint made by – (a)
         a Board or any officer authorised in this behalf by it; or (b) any
         person who has given notice of not less than sixty days, in the
         manner prescribed, of the alleged offence and of his intention to
                                                                              B
         make a complaint to the Board or officer authorised as aforesaid,
         and no court inferior to that of a Metropolitan Magistrate or a
         Judicial Magistrate of the first class shall try any offence
         punishable under this Act.”
       256. Large number of Special Acts which defines offences under
the Act and their penalty contains provision akin to Section 34 of the        C
Aadhaar Act. Special Acts are enacted for serving special objects
towards offences under the Act. The initiation and prosecution of
offences under the Special Act are kept by the specified authority to
keep the initiation and prosecution in the hands of the authorities under
the Special Act which acts as deterrent and prosecutions are brought to       D
its logical end. Further, objective of such provisions is to discourage
frivolous and vexatious complaints.
       257. This Court in Rajkumar Gupta versus Lt.Governor, Delhi
and Others, (1997) 1 SCC 556, had occasion to consider Section 34(1)
of the Industrial Disputes Act, 1947 and objective behind putting such
restriction. Section 34 of Industrial Disputes Act provided that no Court     E
shall take cognizance of any offence punishable under this Act or of the
abetment of any such offence, save on complaint made by or under the
authority of the appropriate Government. Section 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         F
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
                                                                              G
         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.”                                         H
636            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A            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 the authority
      who is most entrusted in ensuring that the provisions of the Act are
B
      implemented in accordance with the Act and offenders should be
      punished. In so far as remedy of victim is concerned, there are few
      facts which need to be kept in mind.
            259. The Information Technology Act, 2000 defines electronic
      record in Section 2(t) which is to the following effect:-
C
              “Section 2(t)- “electronic record” means data, record or data
              generated, image or sound stored, received or sent in an electronic
              form or micro film or computer generated micro fiche;”
             260. The demographic and biometric information which is collected
D     for enrolment of the resident in electronic data as defined in Section 2(t)
      of Information Technology Act and expressly stated in Section 30 of
      Aadhaar Act. Chapter 11 of the Information Technology Act defines
      offences. Section 66C, Section 66D and Section 72 of the Information
      Technology Act defines offences and provides for penalty, which is to
      the following effect:-
E
              “66C. Punishment for identity theft- Whoever, fraudulently
              or dishonestly make use of the electronic signature, password or
              any other unique identification feature of any other person, shall
              be punished with imprisonment of either description for a term
              which may extend to three years and shall also be liable to fine
F             which may extend to rupees one lakh.
              66D. Punishment for cheating by personation by using
              computer resource- Whoever, by means for any communication
              device or computer resource cheats by personating, shall be
              punished with imprisonment of either description for a term which
G             may extend to three years and shall also be liable to fine which
              may extend to one lakh rupees.
              72. Penalty for breach of confidentiality and privacy – Save
              as otherwise provided in this Act or any other law for the time
              being in force, if any person who, in pursuance of any of the
H             powers conferred under this Act, rules or regulations made
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               637
                 [ASHOK BHUSHAN, J.]

        thereunder, has secured access to any electronic record, book,           A
        register, correspondence, information, document or other material
        without the consent of the person concerned discloses such
        electronic record, book, register, correspondence, information,
        document or other material to any other person shall be punished
        with imprisonment for a term which may extend to two years, or
                                                                                 B
        with fine which may extend to one lakh rupees, or with both.”
      261. With regard to an offence 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:                                                                         C

        “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.”
                                                                                 D
       262. This Court in State (NCT of Delhi) versus 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           E
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              F
        High Court, the Delhi High Court, the Kerala High Court, the
        Calcutta High Court, the Madras High Court and the Jharkhand
        High Court, and they are in different tones, it is necessary to
        settle the question involved in these appeals.
        73. After giving our thoughtful consideration in the matter,             G
        in the light of relevant provisions of the Act vis-à-vis the
        Code of Criminal Procedure and the Penal Code, we are of
        the definite opinion that the ingredients constituting the
        offence under the MMDR Act and the ingredients of
        dishonestly removing sand and gravel from the riverbeds
                                                                                 H
638             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A             without consent, which is the property of the State, is a
              distinct offence under IPC. Hence, for the commission of
              offence Under Section 378 IPC, on receipt of the police
              report, the Magistrate having jurisdiction can take
              cognizance of the said offence without awaiting the receipt
              of complaint that may be filed by the authorized officer for
B
              taking cognizance in respect of violation of various
              provisions of the MMDR Act. Consequently the contrary view
              taken by the different High Courts cannot be sustained in
              law and, therefore, overruled. Consequently, these criminal
              appeals are disposed of with a direction to the Magistrates
C             concerned to proceed accordingly. “
              263. The limitation as contained in Section 47 in permitting taking
      cognizance of any offence punishable under Aadhaar Act only on a
      complaint made by the authority or any officer or person authorised by
      it, has legislative purpose and objective, as noticed above. We thus do
D     not find any unconstitutionality in Section 47 of the Aadhaar Act. In
      view of the foregoing discussions, the answer to Issue No.10 is in following
      manner:-
            Ans.10: Section 47 of the Aadhaar Act cannot be held to be
                    unconstitutional on the ground that it does not allow an
E                   individual who finds that there is a violation of Aadhaar
                    Act to initiate any criminal process.
        Issue No.11        Whether Section 57 of Aadhaar Act is
                           unconstitutional?

F           264. Section 57 of the Act, which contains a heading “Act not to
      prevent use of Aadhaar Number for other purposes under law” provides:-
              “57. Act 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
G
              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.”
H
            JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             639
                          [ASHOK BHUSHAN, J.]

                265. Attacking the provision of Section 57, petitioners contends        A
         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
                                                                                        B
         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     C
         of proportionality.
                266. Refuting the above submission of the petitioners, the
         respondents submits that, 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. In fact, Section 57 employs limitation      D
         on such user for other purposes, which is engrafted in Proviso to
         Section 59. The use of Aadhaar having been made subject to procedure
         and obligations under Section 8 and Chapter VI, the contract must provide
         for authentication under Section 8 and protection and formulation under
         Chapter VI also obviously entail the operation of Chapter VII (Offences
         and Penalties). Section 57 does not have any relation to other laws,           E
         which may be made by Parliament, the other laws made by Parliament
Act is   would have to be tested on their own merits. Section 57 is not a provision
         enabling the making of a law or rather it is actually a limitation or
         restriction to law, which may be made with respect to use of Aadhaar
         number. The apprehension expressed by the petitioners is about the             F
         wide extension of use of Aadhaar in private spheres is completely
         misplaced.
                 267. One of the grounds of attack of the petitioners to Section 57
         is that it is disproportionate and does not satisfy the proportionality test
         as laid down in Privacy Judgment – Puttaswamy case. Before                     G
         proceeding further, it becomes necessary to look into the proportionality
         test, its content and parameters.
               268. Patanjali Shastri, Chief Justice, as he then was speaking for
         a Constitution Bench in State of Madras Vs. V.G. Row, AIR 1952 SC
         196, while elaborating the expression reasonable restrictions on the           H
640             SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     exercise of right as occurring in Clause (5) of Article 19 of the Constitution
      laid down that reasonable restriction should not be disproportionate.
      Following was observed in Paragraph 15:-
              “15........It is important in this context to bear in mind that the
              test of reasonableness, wherever prescribed, should be applied
B             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
C             time, should all enter into the judicial verdict. In evaluating such
              elusive factors and forming their own conception of what is
              reasonable, in all the circumstances of 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
D             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
E             them to be reasonable.”
              269. A Two Judge Bench of this Court in Om Kumar and
      Others Vs. 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
F     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
G     considerations. In short, they must be rationally connected to the objective.
      Secondly, the means, must not only be rationally connected to the objective
      in the first sense, but should impair as little as possible the right to freedom
      in question. Thirdly, there must be ‘proportionality’ between the effects
      of the measures and the objective.

H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             641
                 [ASHOK BHUSHAN, J.]

       270. Again, in Teri Oat Estates (P) Ltd. Vs. U.T. Chandigarh            A
and Others, (2004) 2 SCC 130, Sinha, J. had elaborately reviewed
the principle of proportionality. In Paragraph 46, following has been
held:-
        “46. By proportionality, it is meant that the question whether
        while regulating exercise of fundamental rights, the appropriate       B
        or least restrictive choice of measures has been made by the
        legislature or the administrator so as to achieve the object of the
        legislation or the purpose of the administrative order, as the case
        may be. Under the principle, the court will see that the legislature
        and the administrative authority
                                                                               C
        “maintain a proper balance between the adverse effects 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”.
       271. The most elaborate consideration of the Doctrine of                D
Proportionality was made in Modern Dental College and Research
Centre and Others Vs. State of Madhya Pradesh and Others,
(2016) 7 SCC 353. The validity of legislation passed by State of Madhya
Pradesh Legislature came for consideration. The Court (speaking through
Dr. Justice A.K. Sikri, one of us) held that exercise that is required to be
undertaken is the balancing of fundamental right and restrictions imposed,     E
which is known as Doctrine of Proportionality. In Paragraph 60, following
has been stated:-
        “60. …......... Thus, while examining as to whether the impugned
        provisions of the statute and rules amount to reasonable
        restrictions and are brought out in the interest of the general        F
        public, 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       G
        the necessary and sufficient conditions for limitation of a
        constitutionally protected right by a law to be constitutionally
        permissible. According to Aharon Barak (former Chief Justice,
        Supreme Court of Israel), there are four sub-components of
        proportionality which need to be satisfied, a limitation of a
        constitutional right will be constitutionally permissible if:          H
642             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A               (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
B               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.”
C
              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 co-exist
D     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. What criteria is to be adopted in for a proper balancing has
      been explained in Paragraphs 63 and 64:-
              “63. In this direction, the next question that arises is as to what
E             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
F             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. Oakees, (1986) 1 SCR 103 (Can SC), in the following
G             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
                satisfied. First, the objective, which the measures, responsible
                for a limit on a Charter right or freedom are designed to serve,
H               must be “of” sufficient importance to warrant overriding a
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              643
                 [ASHOK BHUSHAN, J.]

          constitutional protected right or freedom … Second … the party        A
          invoking Section 1 must show that the means chosen are
          reasonable and demonstrably justified. This involves “a form
          of proportionality test…” Although the nature of the
          proportionality test will vary depending on the circumstances,
          in each case courts will be required to balance the interests of
                                                                                B
          society with those of individuals and groups. There are, in my
          view, three important components of a proportionality test. First,
          the measures adopted must be … rationally connected to the
          objective. Second, the means … should impair “as little as
          possible” the right or freedom in question … Third, there must
          be a proportionality between the effects of the measures which        C
          are responsible for limiting the Charter right or freedom, and
          the objective which has been identified as of “sufficient
          importance”. The more severe the deleterious effects of a
          measure, the more important the objective must be if the
          measure is to be reasonable and demonstrably justified in a
                                                                                D
          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             E
          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                F
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             G
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, the
        State must nevertheless put into place a robust regime that
        ensures the fulfilment of a threefold requirement. These three          H
644            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A             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
B
              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
              zone of reasonableness mandated by Article 14, which is a
C             guarantee against arbitrary State action. The pursuit of a legitimate
              State aim ensures that the law does not suffer from manifest
              arbitrariness. Legitimacy, as a postulate, involves a value
              judgment. Judicial review does not reappreciate or second guess
              the value judgment of the legislature but is for deciding whether
              the aim which is sought to be pursued suffers from palpable or
D
              manifest arbitrariness. The third requirement ensures that the
              means which are adopted by the legislature are proportional to
              the 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
E             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 interdependence 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
F
              liberty, and the freedoms embodied in Part III is subject to the
              same restraints which apply to those freedoms.”
            274. The third requirement ensures that the means which are
      adopted by the legislature are proportional to the object and needs sought
      to be fulfilled by the law. Proportionality is an essential facet of the
G     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.
           275. European Court of Justice in Michael Schwarz Vs. Stadt
      Bochum in its judgment dated 17.10.2013, while considering a directive
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             645
                 [ASHOK BHUSHAN, J.]

of the European Parliament and on the protection of individuals with           A
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        B
        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).”                            C

       276. Court of Justice of the European Union in Digital Rights
Ireland Ltd. Vs. 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      D
communications services or of public communications networks.
Applying the principle of proportionality, it was held that principle of
proportionality requires that acts of the EU institutions be appropriate
for attaining the legitimate objectives pursued by the legislation at issue
and do not exceed the limits of what is appropriate and necessary in           E
order to achieve those objectives. Following was laid down in
Paragraph 46:
        “46. In summary, Directive 2006/24 is characterised by its
        functional duality. It is, on the one hand, an entirely traditional
        Directive which seeks to harmonise national laws that are              F
        disparate (recital (5) in the Preamble to Directive 2006/24 states
        that national laws “vary considerably”) or likely to become so,
        and was adopted in the interests of the functioning of the internal
        market and precisely calibrated for that purpose, as the court
        ruled in Ireland v European Parliament. However, it is also, on
        the other hand, a Directive which, even in its harmonising function,   G
        seeks to establish where appropriate, obligations- in particular
        data retention obligations- which constitute, as I shall show later,
        serious interference with the enjoyment of the fundamental rights
        guaranteed to European citizens by the Charter, in particular the
        right to privacy and the right to the protection of personal data.”    H
646            SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A           277. Another judgment by Court of the Justice of European Union
      (Grand Chamber) is Tele2 Sverige AB Vs. Post-och telesyrelsen.
      A directive of European Parliament and of the Council concerning the
      processing of personal data and the protection of privacy in the electronic
      communications sector came for consideration. In Paras 95, 96 and 116
      following was laid down:-
B
              “95. With respect to that last issue, the first sentence of Article
              15(1) of Directive 2002/58 provides that Member States may
              adopt a measure that derogates from the principle of
              confidentiality of communications and related traffic data where
              it is a ‘necessary, appropriate and proportionate measure within
C             a democratic society’, in view of the objectives laid down in that
              provision. As regards recital 11 of that directive, it states that a
              measure of that kind must be ‘strictly’ proportionate to the
              intended purpose. In relation to, in particular, the retention of
              data, the requirement laid down in the second sentence of Article
D             15(1) of that directive is that data should be retained ‘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
E             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 Markkinapörssi
              and Satamedia, C-73/07,EU:C:2008:727,paragraph 56; of 9
              November 2010, Volker und Markus Schecke and Eifert, C-92/
F             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
G             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 exceed the
              limits of what is strictly necessary.”
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                 647
                 [ASHOK BHUSHAN, J.]

       278. The U.S. Supreme Court while considering the said test has             A
repeatedly refused to apply the least intrusive test. Vernonia School
District Vs. Wayne Acton, 515 US 646, 132 L.Ed. 2D 564, was a
case where a Student Athlete Drug Policy was adopted by the School
District, which authorised random urine analysis drug testing of students
participating in the District School Athletic Programme. A student was
                                                                                   B
denied participation in Football game since he and his parents had refused
to sign the testing consent forms. The Actons filed suit, seeking for a
declaratory and injunctive relief from enforcement of the Policy. One
of the submissions raised was that Policy is disproportionate since it
asks all the athletes to undergo urine analysis, the test is not least intrusive
test. Repelling the least intrusive test, following was held:-                     C
        “As to the efficacy of this means for addressing the problem: It
        seems to us self-evident that a drug problem largely fueled by
        the “role model” effect of athletes’ drug use, and of particular
        danger to athletes, is effectively addressed by making sure that
        athletes do not use drugs. Respondents argue that a “less intrusive        D
        means to the same end” was available, namely, “drug testing on
        suspicion of drug use.” Brief for Respondents 45-46. We have
        repeatedly refused to declare that only the “least intrusive” search
        practicable can be reasonable under the Fourth Amendment.
        Skinner, supra, at 629, n.9, 103 l Ed 2d 639, 109 S Ct. 1402
        (collecting cases).                                                        E

      279. To the same effect is another judgment of U.S. Supreme
Court in Board of Education of Independent School District Vs.
Lindsay Earls, 536 US 822=153 L.Ed.2d. 735.
       280. The submission of the respondents that least intrusive test            F
cannot be applied to judge the proportionality of Aadhaar Act has been
refuted by petitioners. Petitioners submit that least intrusive test is a
test, which was applied in large number of cases and i.e. the test which
may ensure that there is a minimal invasion of privacy. It is submitted
that the respondents could have switched to a smart card, which itself
contain the biometric information of a person. Respondents submitted               G
that least intrusive test has not been approved either in the Modern
Dental (supra) or in the Puttaswamy case. We are also of the view
that there are several reasons due to which 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             H
648             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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
B
      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
C     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 of
                  Aadhaar number for identifying the identity of an individual
D                 for any purpose.
              (b) Whether by the State or body corporate or private person.
              (c) Pursuant to any law, for the time being in force or any
                  contract to this effect.
E             282. The basic theme of the Aadhaar Act to implement the
      Aadhaar programme was for purposes of disbursement of subsidies,
      benefits or services to individuals entitled for the same. By various
      notifications issued under Section 7, the Government has made applicable
      Aadhaar authentication for large number of schemes namely 133 in
F     number. The idea behind Section 57 is that Aadhaar is liberated from
      the four corners of the Act and it may not be confined to use under
      Section 7 alone. The Act does not prohibit the use of Aadhaar for any
      other purpose. Section 57 is thus in a way clarificatory in nature, which
      enable the use of Aadhaar for any other purposes. The petitioners have
      two basic objections. Firstly, they submitted that use of word “any
G     purpose” is unguided and uncontrolled and secondly it can be used by
      body corporate or persons, pursuant to any law, for the time being in
      force or any contract to this effect. Puttaswamy judgment has already
      laid down that any infringement of Privacy right should pass three-fold
      test as noticed above. The first test, which needs to be satisfied for non-
      intrusion in privacy right is that it should be backed by law. Section 57
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              649
                 [ASHOK BHUSHAN, J.]

cannot be treated as a law, which permit use of Aadhaar number for any          A
purpose. The law providing for use of Aadhaar for any purpose should
be rational and proportional. There has to be some object to be achieved
by use of Aadhaar, in a particular case, the legislature has ample power
to provide for legislative scheme by an enactment making use of Aadhaar
and use of Aadhaar has to be backed by a valid law. In event, it is
                                                                                B
accepted on the strength of Section 57 that a State or body corporate or
person, on the basis of any contract to this effect, are permitted to use
Aadhaar it shall be wholly unguided and uncontrolled, which is prone to
violate the right of privacy. Section 57 makes use of Aadhaar on two
basis. Firstly, “pursuant to any law, for the time being in force” and
secondly “any contract to this effect”. When the legislature uses the           C
phrase “pursuant to any law, for the time being in force”, obviously the
word law used in Section 57 is a law other than Section 57 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
                                                                                D
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            E
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 three-fold       F
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
corporate or person, in pursuant to any contract to this effect is              G
unconstitutional and void. Thus, the last phrase in main provision of
Section 57, i.e. “or any contract to this effect” is struck down. Issue
No. 11 is answered in the following manner:-
      Ans.11:- Section 57, to the extent, which permits use of Aadhaar
               by the State or any body corporate or person, in pursuant        H
650             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A                      to any contract to this effect is unconstitutional and void.
                       Thus, the last phrase in main provision of Section 57,
                       i.e. “or any contract to this effect” is struck down.

             Issue No.12           Whether Section         59 is void        or
                                   unconstitutional?
B
             285. Learned counsel for the petitioners have submitted that prior
      to enactment of Aadhaar Act there was no law and all actions undertaken
      in pursuance of the executive order dated 28.01.2009 including taking of
      demographic and biometric information of an individual was not backed
      by any law violated fundamental right of privacy. Violation of fundamental
C     right of privacy cannot be cured by any subsequent legislation. It is well
      settled that Executive actions, which breach fundamental right of a
      person must have the authority of law to support it. A post-constitutional
      law or executive act that violates fundamental rights is still born and void
      ab initio. Further there was no consent, let alone informed consent
D     obtained from individuals at the time of enrolment under the said
      notification. A validating law must remove the cause of invalidity of
      previous acts. The cause of invalidity in the present case was the absence
      of a law governing privacy infringements. However, Section 59 does not
      create such a legal fiction where the Aadhaar Act is deemed to have
      been in existence since 2009. It only declares a legal consequence of
E     acts done by Union since 2009, which it cannot do. No procedural
      safeguards existed pre-2016 and thus, even assuming that Section 59 is
      validly enacted, it has to be declared unconstitutional for violating Articles
      14 and 21.
            286. Replying the above submissions, respondents submit that
F     Section 59 is retrospective, saving provision which provides a
      retrospective effect to the notification dated 28.01.2009 and anything
      done or action taken by the Central Government under the said
      Resolution.
             287. The expression ‘anything done or any action under the
G     Resolution’ is wide enough to cover all the actions including memorandum
      of undertaken which 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
H
        JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               651
                      [ASHOK BHUSHAN, J.]

     expression clearly indicates creation of fiction with the object of providing    A
     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
or   provision all the actions under the aforesaid scheme shall be deemed to
     have been done under the Act and not under the aforesaid notification.
                                                                                      B
     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                 C
             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.”
           288. Justice G.P. Singh in Principles of Statutory Interpretation,         D
        th
     14 Edition, while explaining the legal fiction sum up the Principle in the
     following words:
             “The Legislature is quite competent to create a legal fiction, in
             other words, to enact a deeming provision for the purpose of
             assuming existence of a fact which does not really exist provided        E
             the declaration of non-existent facts as existing does not offend
             the constitution. Although the word ‘deemed’ is usually used, a
             legal fiction may be enacted without using that word. For instance,
             the words ‘as if’ can also be used to create a legal fiction.
                 In interpreting a provision creating a legal fiction, the court is   F
             to ascertain for what purpose the fiction is created, 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 to be extended beyond the purpose for which it is created,        G
             or beyond the language of the section by which it is created.”
          289. A Constitution Bench judgment of this Court in M/s. West
     Ramnad Electric Distribution Co. Ltd. vs. The State of Madras and
     another, AIR 1962 SC 1753, has been heavily relied by the respondents.
     The Madras Legislature had passed an Act, the Madras Electricity Supply
                                                                                      H
652            SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     Undertakings (Acquisition) Act, 1949 for supply of electricity in the
      province of Madras. By an order dated 17.05.1951 appellant undertaking
      was acquired and possession was directed to be taken. There was
      challenge to 1949 Act which challenge was upheld by this Court in
      Rajahmundry Electric Supply Corporation Ltd. v. State of Andhra
      Pradesh, AIR 1954 SC 251, on the ground that Act was beyond the
B
      legislative competence of the Madras Legislature. The Madras
      Legislature passed another Act, the Madras Electricity Supply
      Undertakings (Acquisition) Act, 1949, which also received the Presidential
      assent. The Act purported to validate the action taken under the 1949
      Act. A writ petition was filed in Madras High Court challenging the
C     action taken under 1949 Act to continue the possession. The writ petition
      was dismissed and the matter was taken to this Court. The contention
      which was raised before this Court has been noticed in paragraph 8 in
      the following words:
              “8....Mr. Nambiar further contends that this notification was
D             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 Art. 31 of the Constitution, and so, Art. 13(2)
E             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, s. 24 cannot have retrospective
              operation. That, in substance, is the first contention raised before
              us.”
F           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
G             the 21st September, 1951.
              Section 24 reads thus :-
                “Orders made, decisions or directions given, notifications issued,
                proceedings taken and acts of things done, in relation to any
                undertaking taken ever, if they would have been validly made,
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            653
                 [ASHOK BHUSHAN, J.]

          given, issued, taken or done, had the Madras Electricity Supply     A
          Undertakings (Acquisition) Act, 1949 (Madras Act XLIII of
          1949), and the rules made thereunder been in force on the
          date on which the said orders, decisions or directions,
          notifications, proceeding, acts or things, were made, given,
          issued, taken or done are hereby declared to have been validly
                                                                              B
          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 Acts.””
291. Repelling the submission of counsel for the appellant it was held
that Section 24 had been enacted for the purpose of retrospectively           C
validating action taken under the provisions of the earlier Act. Following
was held in paragraph 13:
        “13....If the Act is retrospective in operation and s. 24 has been
        enacted for the purpose of retrospectively validating actions taken
        under the provisions of the earlier Act, it must follow by the very   D
        retrospective operation of the relevant provisions that at the time
        when the impugned notification was issued, these provisions were
        in existence. That is the plain and obvious effect of the
        retrospective operation of the statute. Therefore in considering
        whether Art. 31(1) has been complied with or not, we must             E
        assume that before the notification was issued, the relevant
        provisions of the Act were in existence and so, Art. 31(1) must
        be held to have been complied with in that sense.”
        292. The submission was made that notification issued under the
earlier Act contravenes Article 31 which is a fundamental right and cannot    F
be cured by the subsequent law. The contention has been noted in
paragraph 15:
        15. That takes us to the larger issue raised by Mr. Nambiar in
        the present appeals. He contends that the power of the legislature
        to make laws retrospective cannot validly be exercised so as to       G
        care the contravention of fundamental rights retrospectively. His
        contention is that the earlier Act of 1949 being dead and non-
        existent, the impugned notification contravened Art. 31(1) and
        this contravention of a fundamental right cannot be cured by the
        legislature by passing a subsequent law and making it
                                                                              H
654            SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A            retrospective. In support of this 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
B     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
C            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
D            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 decision in Deep Chand’s case, the infirmity
             proceeding from lack of legislative competence as well as the
E            infirmity proceeding from the contravention of fundamental rights
             lead to the same result and that is that the offending legislation is
             void and honest. That being so, if the legislature can validate
             actions taken under one class of void legislation, there is no reason
             why it cannot exercise its legislative power to validate actions
             taken under the other class of void legislation. We are, therefore,
F            not prepared to accept Mr. Nambiar’s contention that where the
             contravention of fundamental rights is concerned, the legislature
             cannot pass a law retrospectively validate actions taken under a
             law which was void because it contravened fundamental rights.”
            294. Shri Shyam Divan submits that the above judgment of this
G     Court in M/s. West Ramnad Electric Distribution Co.Ltd. is not
      applicable. He submits that unlike Section 59 of Aadhaar Act, the
      provisions in West Ramnad case had no limiting words such as ‘action
      taken by the Central Government’. Further even under the West
      Ramnad case principle, the action can be saved would have to be proper
H     under the previous regime. West Ramnad actions were under an earlier
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              655
                 [ASHOK BHUSHAN, J.]

statute that was declared ultra vires, which cannot be saved under Section      A
59 of the Aadhaar Act. The collection of biometrics from individuals
right upto 2016 cannot be described as lawful and intra vires the 2009
notification. If it were ultra vires the 2009 notification, Section 59 of the
Aadhaar Act cannot validate the action.
       295. We have already noticed the ratio of the judgment as stated         B
in paragraph 16 in the judgment in West Ramnad case that even if
earlier action which is sought to be validated was ultra vires and violates
constitutional right, it could have been very well validated by retrospective
statute creating a deeming fiction. We are of the view that ratio laid
down in West Ramnad case is fully applicable in the present case.
                                                                                C
       296. Another Constitution Bench in Bishambhar Nath Kohli and
others v. State of Uttar Pradesh and others, AIR 1966 SC 573, had
occasion to consider the deeming fiction as contained under Act 31 of
1950. Section 58(3) of Act 31 of 1950 as 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        D
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            E
        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      F
        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.
                                                                                G
        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. 6 of Ordinance 12 of 1949 was, therefore, for the purpose      H
656            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A             of this proceeding, to be deemed an order made in exercise of
              the power conferred by Act 31 of 1950 as if that Act were in
              force on the day on which the order was passed.”
            297. The ratio of judgment in West Ramnad(supra) has been
      repeatedly applied by this Court in several judgments. Reference is made
B     to Hari Singh and others vs. The Military Estate Officer and another,
      1972 (2) SCC 239, which was a case rendered by a seven-Judge
      Constitution Bench. In paragraph 16 following has been held:
              “16. The ruling of this Court in West Ramnad Electric Distribution
              Co. Ltd.(1) case establishes competence of the legislature to
C             make laws 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.”
D            298. Justice Krishna Iyer, J. in Krishna Chandra
      Gangopadhyaya and others vs. The Union of India and others, 1975
      (2) SCC 302, while considering validation of Act held that the Legislature
      can retrospectively validate what otherwise was inoperative law or action.
      In paragraph 25 following has been held:

E             “25. The ratio of West Ramnad (supra) is clear. The Legislature
              can retrospectively validate what otherwise was inoperative law
              or action. Unhappy wording, infelicitous expression or imperfect
              or inartistic drafting may not necessarily defeat, for that reason
              alone, the obvious object of the validating law and its retrospective
              content.”
F
             299. This Court again in ITW Signode India Ltd. vs. Collector
      of Central Excise, 2004 (3) SCC 48, held that curative statutes by
      their very nature are intended to operate upon and affect past transaction.
      In paragraph 61 following has been held:
              “61. A statute, it is trite, must be read as a whole. The plenary
G
              power of legislation of the Parliament or the State Legislature in
              relation to the legislative fields specified under Seventh Schedule
              of the Constitution of India is not disputed. A statutory act may
              be enacted prospectively or retrospectively. A retrospective
              effect indisputably can be given in case of curative and validating
H             statute. In fact curative statutes by their very nature are intended
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             657
                [ASHOK BHUSHAN, J.]

       to operate upon and affect past transaction having regard to the       A
       fact that they 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 another vs. d. Achiah Chetty, Etc., (1969) 1              B
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       C
       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....”
                                                                              D
      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 affairs as       E
       real, you must surely, unless prohibited from doing so, also imagine
       as real the consequences and incidents which, if the putative
       state of affairs had in fact existed, must inevitably have flowed
       from or accompanied it... The statute says that you must imagine
       a certain state of affairs; it does not say that having done so, you
       must cause or permit your imagination to boggle when it comes          F
       to the inevitable corollaries of that state of affairs.”
       302. Legislature has often created legal fiction to save several
actions which had happened prior to enactment. Reference is made to
judgment of this Court in Nar Bahadur Bhandari and another vs.
State of sikkim and others, (1998) 5 SCC 39. In the above case                G
deeming fiction was created by Section 30 of Prevention of Corruption
Act, 1988. Section 30 provides that any action taken or purported to
have been done or taken under or in pursuance of the Acts so repeated
shall be deemed to have been done or taken under 1988 Act. Following
was stated in paragraph 10:
                                                                              H
658            SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A            “10....In the present case, the Act of 1988 is the repealing Act.
             Sub-sec. (2) of Section 30 reads as follows:
               “30(2) Notwithstanding such repeal, but without prejudice to
               the application of section 6 of the General Clauses Act 1897
               (10 of 1897), anything done or any action taken or purported to
B              have been done or taken under or in pursuance of the Acts so
               repealed shall, in so far as it is not inconsistent with the provisions
               of this Act, be deemed to have been done or taken under or in
               pursuance of the corresponding provision of this Act.”
             12. The said Sub-section while on the one hand ensures that the
C            application of Section 6 of the General Clauses Act is not
             prejudiced, on the other it expresses a different intention as
             contemplated by the said Section 6. The last part of the above
             Sub-section introduces a legal fiction whereby anything done or
             action taken under or in pursuance of the Act of 1947 shall be
             deemed to have been done or taken under or in pursuance of
D            corresponding provisions of the Act of 1988. That is, the fiction
             is to the effect that the Act of 1988 had come into force when
             such thing was done or action was taken.”
            303. An elaborate consideration on deeming fiction was made by
      three-Judge Bench of this Court in State of Karnataka vs. State of
E     Tamil Nadu and others, (2017) 3 SCC 362, one of us, Justice Dipak
      Misra, as he then was, 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:
F
               “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
G
             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
H            said provision, if it is to be interpreted to exclude the jurisdiction
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                659
              [ASHOK BHUSHAN, J.]

   of the Supreme Court of India, it has to be supported by a                  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 Constitution
   may be ultra vires affecting the power of judicial review which
                                                                               B
   is a part of basic feature of the Constitution. Learned senior
   Counsel for the Respondent has drawn a distinction between
   the conferment and the exclusion of the power of the Supreme
   Court of India by the original Constitution and any exclusion by
   the constitutional amendment. Be that as it may, the said aspect
   need not be adverted to, as we are only required to interpret               C
   Section 6(2) as it exists today on the statute book. The said
   provision has been inserted to provide teeth to the decision of
   the tribunal after its publication in the official gazette by the Central
   Government and this has been done keeping in view the Sarkaria
   Commission’s Report on Centre-State relations (1980). The
                                                                               D
   relevant extract of the Sarkaria Commission’s Report reads as
   follows:
     17.4.19 The Act was amended in 1980 and Section 6A was
     inserted. This Section provides for framing a scheme for giving
     effect to a Tribunal’s award. The scheme, inter alia provides
     for the establishment of the authority, its term of office and            E
     other condition 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 6A cannot
     really function without the cooperation of the States concerned.
     Further, to make a Tribunal’s award binding and effectively               F
     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                 G
     sanction behind it as an order or decree of the Supreme Court
     to make a Tribunal’s award really binding.
   74....Parliament has intentionally used the words from which it
   can be construed that a legal fiction is meant to serve the purpose
                                                                               H
660     SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A      for which the fiction has been created and not intended to travel
       beyond it. The purpose is to have the binding effect of the
       tribunal’s award and the effectiveness of enforceability. Thus, it
       has to be narrowly construed regard being had to the purpose it
       is meant to serve.
B     304. In paragraphs 75, 76 and 77 following has been laid down:
       “75. In this context, we may usefully refer to the Principles of
       Statutory Interpretation, 14th Edition by G.P. Singh. The learned
       author has expressed thus:
         “In interpreting a provision creating a legal fiction, the court is
C        to ascertain for what purpose the fiction is created1, 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,
D        or beyond the language of the Section by which it is created4.
         It cannot also be extended by importing another fiction5. 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
E      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
F        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, 1987 Supp. SCC 350, M. Venugopal v. LIC,
         (1994) 2 SCC 323 and 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
G        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.”
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                661
                 [ASHOK BHUSHAN, J.]

          38. From the aforesaid pronouncements, the principle that can           A
          be culled out is that it is the bounden duty of the court to
          ascertain for what purpose the legal fiction has been created.
          It is also the duty of the court to imagine the fiction with all real
          consequences and instances unless prohibited from doing so.
          That apart, the use of the term “deemed” has to be read in its
                                                                                  B
          context and further, the fullest logical purpose and import are
          to be understood. It is because in modern legislation, the term
          “deemed” has been used for manifold purposes. The object of
          the legislature has to be kept in mind.”
        77. In Hari Ram, the Court has held that in interpreting the
        provision creating a legal fiction, the court is to ascertain for         C
        what purpose the fiction is created and after ascertaining the
        same, the court is to assume all those facts and consequences
        which are incidental or inevitable corollaries for giving effect to
        the fiction.”
       305. Applying the ratio of this Court as noticed above, it is clear        D
that Parliamentary legislative intent of Section 59 is to save all actions
taken by Central Government under the notification dated 28.01.2009
and notification dated 12.09.2015 deeming the same to have been validly
done under the Aadhaar Act by creating a legal fiction. The intention to
save all actions taken under the aforesaid two notifications and treat            E
them to have done under that Act is clear, it is the purpose and object of
Section 59. Section 59 has to be interpreted to give meaning to the
legislative intent to hold otherwise shall defeat the purpose of Section 59.
As observed, Legislature by legislative device can cover actions taken
earlier while creating any legal fiction which has actually been done by
Section 59.                                                                       F

       306. There is one more submission of the petitioners to be
considered. Petitioner’s case is that 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                G
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
                                                                                  H
662            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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
B
      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:- Section 59 has validated all actions taken by the Central
C                   Government under the notifications dated 28.01.2009
                    and 12.09.2009 and all actions shall be deemed to have
                    been taken under the Aadhaar Act.

        Issue No. 13      Whether Collecting the identity information of
                          children between 5 to 18 years is unconstitutional?
D
             307. Section 5 of the Act provides that the Authority shall take
      special measures to issue Aadhaar number to women, children, senior
      citizens, persons with disability, unskilled and unorganised workers,
      nomadic tribes or to such other persons who do not have any permanent
E     dwelling house and such other categories of individuals as may be specified
      by regulations. Section 5 contemplates special measures for issuance
      of Aadhaar number to children. The Aadhaar (Enrolment and Update)
      Regulations, 2016 contains some special measures. One of the special
      measures is Regulation 5, which provides for information required for
      enrolment of children below five years of age. Regulation 5 is as follows:-
F
              5. Information required for enrolment of children below
              five years of age. — (1) For children below the five years of
              age, the following demographic and biometric information shall
              be collected:
              (a) Name
G
              (b) Date of Birth
              (c) Gender
              (d) Enrolment ID or Aadhaar number of any one parent,
                  preferably that of the mother in the event both parents are
H
             JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            663
                           [ASHOK BHUSHAN, J.]

                        alive, or guardian. The Aadhaar number or EID of such           A
                        parent or guardian is mandatory, and a field for relationship
                        will also be recorded.
                  (e) The address of such child which is the same as that of the
                      linked parent / guardian.
                  (f)   Facial image of the child shall be captured. The biometric      B
                        information of any one parent / guardian shall be captured
                        or authenticated during the enrolment.
                  (2) The Proof of Relationship (PoR) document as listed in
                  schedule II for establishing the relationship between the linked
                  parent/guardian and the child shall be collected at the time of       C
                  enrolment. Only those children can be enrolled based on the
                  relationship document (PoR), whose names are recorded in the
                  relationship document.
tion of
tional?          308. For children below five, no core biometric informations are
          captured and only biometric information of any one parent/guardian is         D
          captured. The objection raised by petitioners is with regard to children
          between 5 to 18 years on the ground that they being minors, parental
          consent is not taken. We have noted 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           E
          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        F
          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              G
                        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.
                                                                                        H
664            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A
        Issue No. 14       Whether Rule 9 as amended by the Prevention
                           of Money-Laundering (Second Amendment)
                           Rules, 2017 is unconstitutional?
             309. For answering the above issue we need to advert to the objects
B     and scheme of the Prevention of Money-Laundering Act, 2002(PMLA,
      2002). The scheme as delineated by the Prevention of Money-Laundering
      (Maintenance of Records) Rules, 2005 also need to be looked into before
      coming to the Second Amendment Rules, 2017. The PMLA, 2002 has
      been enacted to prevent money-laundering and to provide for confiscation
      of property derived from, or involved in, money-laundering and for matters
C     connected therewith or incidental thereto. The Act has long Preamble
      entire of which needs to be noted, which is as follows:
              “An Act to prevent money-laundering and to provide for
              confiscation of property derived from, or involved in, money-
              laundering and for matters connected therewith or incidental
D             thereto.
                   WHEREAS the Political Declaration and Global
              Programme of Action, annexed to the resolution S-17/2 was
              adopted by the General Assembly of the United Nations at its
              seventeenth special session on the twenty-third day of February,
E             1990;
                   AND WHEREAS the Political Declaration adopted by the
              Special Session of the United Nations General Assembly held
              on 8th to 10th June, 1998 calls upon the Member States to adopt
              national money-laundering legislation and programme; AND
F
                   WHEREAS it is considered necessary to implement the
              aforesaid resolution and the Declaration;
             310. Two international declarations have been specifically
      mentioned in the Preamble which pave the way for the enactment. The
      resolution adopted by the General Assembly of the United Nations on
G     23rd February, 1990 contained the recommendations on money-laundering
      of the Financial Action Task Force aforesaid. The Political Declaration
      and Action Plan against money-laundering by the United Nations General
      Assembly held on 10.06.1998 which called upon the States Members of
      the United Nations to adopt its declaration to the following effect:
H
          JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                           665
                        [ASHOK BHUSHAN, J.]

                  “Political Declaration and Action Plan against Money              A
 ention                                Laundering
dment)
                adopted at the Twentieth Special Session of the United
              Nations General Assembly devoted to “countering the world
                                drug problem together”
                            New Your, 10 June 1998(excerpts)                        B

                    “We, the States Members of the United Nations,
                                     …     … … …
                 15. Undertake to make special efforts against the laundering
             of money linked to drug trafficking and, in that context, emphasize    C
             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   D
             Drugs and Psychotropic Substances of 1988, as well as the
             measures for countering money-laundering, adopted at the present
             session;
                               …       …        …        …
             “COUNTERING MONEY-LAUNDERING”                                          E
             The General Assembly,
             …        …        …       …
             Emphasizing the enormous efforts of a number of States to
             draw up and apply domestic legislation that identifies the             F
             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                     G
             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;
                                                                                    H
666    SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A     2. Urges all States to implement the provisions against
      money-laundering that are contained in the United Nations
      Convention against Illicit Trafficking in Narcotic Drugs and
      Psychotropic Substances of 1988 and the other relevant
      international instruments on money-laundering, in
      accordance with fundamental constitutional principles, by
B
      applying the following principles:
      (a) Establishment of a legislative framework to criminalize
      the laundering of money derived from serious crimes in order
      to provide for the prevention, detection, investigation and
      prosecution of the crime of money-laundering through, inter
C     alia:
      (i) Identification, freezing, seizure and confiscation of the
      proceeds of crime;
      (ii) International cooperation; and mutual legal assistance
D     in cases involving money-laundering;
      (iii) Inclusion of the crime of money-laundering in mutual
      legal assistance agreements for the purpose of ensuring
      judicial assistance in investigations, court cases or judicial
      proceedings relating to that crime;
E     (b) Establishment of an effective financial and regulatory
      regime to deny criminals and their illicit funds access to
      national and international financial systems, thus preserving
      the integrity of financial systems worldwide and ensuring
      compliance with laws and other regulations against money-
F     laundering through:
      (i) Customer identification and verification requirements
      applying the principle of “know your customer”, in order to
      have available for competent authorities the necessary
      information on the identity of clients and the financial
      movements that they carry out;
G
      (ii) Financial record-keeping;
      (iii) Mandatory reporting of suspicious activity;
      (iv) Removal of bank secrecy impediments to efforts directed
      at preventing, investigating and punishing money-
H     laundering;
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              667
                 [ASHOK BHUSHAN, J.]

        (v) Other relevant measures;                                            A
        (c) Implementation of law enforcement measures to provide
        tools for, inter alia:
        (i) Effective detection, investigation, prosecution and
        conviction of criminals engaging in moneylaundering
        activity;                                                               B

        (ii) Extradition procedures;
        (iii) Information-sharing mechanisms;”
       311. The modern world is more focused on economic growth.
Every nation tries to march forward in achieving the rapid economic             C
growth. Economics is factor which not only plays a major role in the
future of nation but also in all human organisations. Most of the individuals
also aspire for 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          D
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       E
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:                             F
               “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 the initiatives
        taken by the international community to obviate such threat are         G
        outlined below:—
        (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
                                                                                H
668      SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A      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
B      of moneylaundering.
       (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
C      for comprehensive legislation to combat the problem of
       moneylaundering. 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;
D         (ii) to work out modalities of disclosure by financial institutions
          regarding reportable transactions;
          (iii) confiscation of the proceeds of crime;
          (iv) declaring money-laundering to be an extraditable offence;
          and
E
          (v) promoting international co-operation in investigation of
          moneylaundering.
       (d) the Political Declaration and Global Programme of Action
       adopted by United Nations General Assembly by its Resolution
F      No. S-17/2 of 23rd February, 1990, inter alia, calls upon the
       member States to develop mechanism to prevent financial
       institutions from being used for laundering of drug related money
       and enactment of legislation to prevent such laundering.
       (e) the United Nations in the Special Session on countering World
G      Drug Problem Together concluded on the 8th to the 10th June,
       1998 has made another declaration regarding the need to combat
       moneylaundering. India is a signatory to this declaration.
      ….................................”

H
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              669
                [ASHOK BHUSHAN, J.]

       312. Paragraph two of the Statement of Objects and Reasons              A
noticed the legislative process which was initiated by introducing the
Prevention of Money-Laundering Bill, 1998 which was introduced in the
Lok Sabha. The Bill was referred to the Standing Committee on Finance,
which submitted its report on 04.03.1999 to the Lok Sabha. Various
recommendations of the Standing Committee were accepted by the
                                                                               B
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        C
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        D
       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.”
                                                                               E
      313. Section 2 (ha) defines client and Section 2(wa) defines
reporting entity which are as follows;
       “2.(ha) “client” means a person who is engaged in a financial
       transaction or activity with a reporting entity and includes a person
       on whose behalf the person who engaged in the transaction or            F
       activity, is acting;
       (wa) “reporting entity” means a banking company, financial
       institution, intermediary or a person carrying on a designated
       business or profession;”
      314. Section 12 lays down various obligations on reporting entity        G
to maintain records. Section 12(1)(c) reads:
       “Section 12. Reporting entity to maintain records.-(l) Every
       reporting entity shall-
          …     …        …        …
                                                                               H
670            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A              (c) verify the identity of its clients in such manner and subject
               to such conditions, as may be prescribed;”
            315. The Central Government in exercise of its rule making power
      has made Rules, namely, the Prevention of Money-laundering
      (Maintenance of Records) Rules, 2005 (hereinafter referred to as “Rules,
B     2005). In the present case challenge is to Rule 9 as amended by Second
      Amendment Rules, 2017. We may thus notice the amendments made in
      Rule 9 by Second Amendment Rules, 2017. By Second Amendment
      Rules, 2017, sub-Rule (4) to sub-Rule (9) of Rule 9 were substituted in
      following manner:
C            “(b) in rule 9, for sub-rule (4) to sub-rule (9), the following sub-
             rules shall be substituted, namely:—
             “(4) Where the client is an individual, who is eligible to be enrolled
             for an Aadhaar number, he shall for the purpose of sub-rule (1)
             submit to the reporting entity,—
D              (a) the Aadhaar number issued by the Unique Identification
               Authority of India; and
               (b) the Permanent Account Number or Form No. 60 as defined
               in Income-tax Rules, 1962,
               and such other documents including in respect of the nature of
E
               business and financial status of the client as may be required
               by the reporting entity:
                Provided that where an Aadhaar number has not been
               assigned to a client, the client shall furnish proof of application
               of enrolment for Aadhaar and in case the Permanent Account
F
               Number is not submitted, one certified copy of an ‘officially
               valid document’ shall be submitted.
                Provided further that photograph need not be submitted by a
               client falling under clause (b) of sub-rule (1).
G            (4A) Where the client is an individual, who is not eligible to be
             enrolled for an Aadhaar number, he shall for the purpose of sub-
             rule (1), submit to the reporting entity, the Permanent Account
             Number or Form No. 60 as defined in the Income-tax Rules,
             1962:

H
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                          671
              [ASHOK BHUSHAN, J.]

       Provided that if the client does not submit the Permanent         A
   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.
                                                                         B
   (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:
                                                                         C
      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;                                D
     (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                E
     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             F
     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;
                                                                         G
     (iv) the small account shall be monitored and when there is
     suspicion of money laundering or financing of terrorism or other
     high risk scenarios, the identity of client shall be established
     through the production of officially valid documents, as referred
     to in sub-rule (4) and the Aadhaar number of the client or
     where an Aadhaar number has not been assigned to the client,        H
672    SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A       through the production of proof of application towards
        enrolment for Aadhaar along with an officially valid document;
            Provided further that if the client is not eligible to be enrolled
        for an Aadhaar number, the identity of client shall be established
        through the production of an officially valid document;
B       (v) the foreign remittance shall not be allowed to be credited
        into the small account unless the identity of the client is fully
        established through the production of officially valid documents,
        as referred to in sub rule (4) and the Aadhaar number of the
        client or where an Aadhaar number has not been assigned to
C       the client, through the production of proof of application towards
        enrolment for Aadhaar along with an officially valid document:
            Provided that if the client is not eligible to be enrolled for
        the Aadhaar number, the identity of client shall be established
        through the production of an officially valid document.
D     (6) Where the client is a company, it shall for the purposes of
      sub-rule (1), submit to the reporting entity the certified copies of
      the following documents:—
        (i) Certificate of incorporation;
        (ii) Memorandum and Articles of Association;
E
        (iii) A resolution from the Board of Directors and power of
        attorney granted to its managers, officers or employees to
        transact on its behalf;
        (iv) (a) Aadhaar numbers; and
F       (b) Permanent Account Numbers or Form 60 as defined in the
        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
G       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
H
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             673
              [ASHOK BHUSHAN, J.]

     number and do not submit the Permanent Account Number,                 A
     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;                                          B

     (ii) partnership deed; and
     (iii) (a) Aadhaar number; and
     (b) Permanent Account Number or Form 60 as defined in the
     Income-tax Rules, 1962.                                                C
     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:                                           D
          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.                                     E
   (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;
                                                                            F
     (ii) trust deed; and
     (iii) (a) Aadhaar number; and
     (b) Permanent Account Number or Form 60 as defined in the
     Income-tax Rules, 1962,
                                                                            G
     issued to the person holding an attorney to transact on its behalf
     or where 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:
                                                                            H
674    SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A           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.
B     (9) Where the client is an unincorporated association or a body
      of individuals, it shall submit to the reporting entity the certified
      copies of the following documents:—
        (i) resolution of the managing body of such association or body
        of individuals;
C       (ii) power of attorney granted to him to transact on its behalf;
        (iii) (a) the Aadhaar number; and
        (b) Permanent Account Number or Form 60 as defined in the
        Income-tax Rules, 1962,
D       issued to the person holding an attorney to transact on its behalf
        or where Aadhaar number has not been assigned, proof of
        application towards enrolment for Aadhaar and in case the
        Permanent Account Number is not submitted an officially valid
        document shall be submitted; and
E       (iv) such information as may be required by the reporting entity
        to collectively establish the legal existence of such an association
        or body of individuals:
         Provided that for the purpose of this clause if the person
        holding an attorney to transact on the company’s behalf is not
F       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.”
        (c) after sub-rule (14), the following sub-rules shall be inserted,
        namely,—
G       “(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.
H
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                           675
              [ASHOK BHUSHAN, J.]

    (16) In case the client referred to in sub-rules (4) to (9) of rule   A
    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
                                                                          B
    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         C
    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:                                           D
        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.                  E
    (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 enrolment camps at                 F
    convenient locations for providing enrolment facilities in
    consultation with UIDAI and any individual desirous of
    commencing an account based relationship as provided in this
    rule, who does not possess the Aadhaar number or has not yet
    enrolled for Aadhaar, may also visit such special Aadhaar
    enrolment camps for Aadhaar enrolment or any of the Aadhaar           G
    enrolment centres in the vicinity with existing registrars of
    UIDAI.
    (c) In case the client fails to submit the Aadhaar number and
    Permanent Account Number within the aforesaid six months
                                                                          H
676             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A               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
B               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.
                (18) In case the identity information relating to the Aadhaar
C               number or Permanent Account Number submitted by the client
                referred to in sub-rules (4) to (9) of rule 9 does not have current
                address of the client, the client shall submit an officially valid
                document to the reporting entity.”
             316. The challenge to Second Amendment Rules, 2017 is on the
D     ground that it violate Articles 14, 19(1)(g), 21 and 300A of the Constitution
      of India; Sections 3, 7 and 51 of the Aadhaar Act and also ultra vires to
      the provisions of PMLA Act, 2002.
             317. Elaborating his submissions Shri Arvind P. Datar learned
      senior counsel submits that Second Amendment Rules violate Article 14
E     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
F     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
G     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.
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               677
                 [ASHOK BHUSHAN, J.]

       319. Shri Tushar Mehta, learned Additional Solicitor General              A
refuting the submission, submits that Second Amendment Rules carry
on the object of 2002, Act. The verification of bank account by way of
Aadhaar is done for the reason that often bank accounts are opened in
either fictitious names or in the name of wrong persons on the basis of
forged identity documents and financial crimes are committed. It is seen
                                                                                 B
that accommodation entries are mostly provided through the banking
channels by bogus companies to convert black money into white. Benami
transactions routinely take place through banking channels. All of the
above, can to a large extent be checked by verifying Aadhaar with bank
accounts to ensure that the account belongs to the person who claims to
be the account holder and that he or she is a genuine person. Verification       C
of bank account with Aadhaar also ensures that the direct benefit transfer
of subsidies reach 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.
                                                                                 D
       320. Now, we come to the respective submissions of the parties.
A perusal of the Second Amendment Rules, 2017 indicates that the State
has sought to make the provisions of PMLA more robust and ensure
that the ultimate object of the Act is achieved. Aadhaar Act, 2016 having
been enacted with effect from 01.07.2016, it was decided to get the
accounts verified by Aadhaar. Amended Rules help all concerned to                E
detect fictitious, ghost and benami accounts. The object of the PMLA
and the definition of beneficial owner Act seeks to traverse behind the
corporate veil of shell companies and spurious Directors in order to
ascertain the real natural persons controlling the accounts in the reporting
entities. The Amendment Rules applicable to reporting entities and the           F
legitimate aim sought to be achieved by the State that is conclusive
identification of a natural person or the beneficial owner. The statutory
rules cast an obligation on all account holders to get their identity verified
by Aadhaar mechanism and those who are already holding account in
the reporting entity they are required to submit the Aadhaar number or
proof of their applied Aadhaar identity. When a statute puts obligation on       G
account holder to get identity verification in a particular manner a person
chose not to obtain Aadhaar number cannot complain 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           H
678            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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
B
      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
C     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 the object sought
      to be achieved by the enactment. The submission of Aadhaar number
      only once by an account holder is a proportionate measure. We have
      already referred to judgments where doctrine of proportionality has been
D
      expounded. While adjudging a statutory provision from the angle of the
      proportionality the Court has to examine as to whether statutory measure
      contained in statutory provision is not excessive as against the object
      which seeks to achieve. The legislature has margin of discretion while
      providing for one or other measures to achieve an object. Unless the
E     measures foully unreasonable and disproportionate, court does not
      normally substitutes its opinion. On the basis of Rule 9(17)(c), petitioner
      contends that in the event account holder fails to submit the Aadhaar
      number and PAN within a period as mentioned in the aforesaid Rules
      account shall cease to be operational till the time Aadhaar number and
      PAN is submitted by the client. Petitioner alleged violation of Article
F
      300A. The petitioner’s case is that account of a person is his property to
      which he cannot be deprived, saved by the authority of law. For non-
      submission of Aadhaar number and PAN only consequence which is
      contemplated by sub-rule (c) is that account shall cease to be operational.
      We are of the view that the account remains belonging to the account
G     holder and the amount in the account is only his amount and there is no
      deprivation of the property of account holder. Under the banking rules
      and procedures, there are several circumstances where account becomes
      un-operational. A non-operational account also is an account which
      belongs to the account holder and amount laying in the non-operational
      account is neither forfeited by the bank nor taken out from the said
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              679
                 [ASHOK BHUSHAN, J.]

account. Further, account is ceased operational only till the time Aadhaar      A
number and PAN is submitted. The consequences provided is only to
effectuate the purpose of the Act and the Rules i.e. account be verified
by Aadhaar mechanism. It is not the intent to deprive the account holder
of the amount lying in the account. We, thus, do not find any substance
in the submission of the petitioner that Rule 9(17)(c) violates right under
                                                                                B
Article 300A. Aadhaar number providing for verification of an account
also cannot be held to be violating right under Article 21. The reporting
entity i.e. banks and financial institutions 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.    C
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   D
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,               E
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 company. One of the objects of the Act is to
detect money-laundering wherever it is found. Inquiring details of the
company to find out shell companies and ghost companies and the real            F
beneficial owner cannot be said to be foreign to the object of the Act.
Companies, partnership firms, trusts or incorporated institutions or body
of individuals cannot complain any violation of rights under Article
19(1)(g). There is no amount of restriction in the right of aforesaid in
carrying out any profession, or any trade or business. Petitioners have
also contended that amended Rule 9 also violates Section 3, 7 and 51 of         G
the Aadhaar Act. Section 3 provides for enrolment under Aadhaar
scheme. Section 7 provides for requirement of proof of Aadhaar number
for receipt of certain subsidies, benefits and services, etc. Section 51
relates to delegation by the authority to any Member, officer of the
authority or any other person such of the powers and functions under            H
680            SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A     the said Act except the power under Section 54. Rules cannot be held in
      any manner violating Sections 3, 7 and 51. The rules provide for use of
      Aadhaar for verification of bank account by law as contemplated by
      Section 57 of the Aadhaar Act.
             322. It is further submitted that Amendment Rules are also ultra
B     vires to the PMLA, 2002. Shri Arvind P Datar has also referred to
      judgment of the U.K. Supreme Court in Bank Mellat v. Her Majesty’s
      Treasury, (2013) UKSC 39. He has relied on principle of proportionality
      as summed in paragraph 20 which is to the following effect:
             “20....The classic formulation of the test is to be found in
C            the advice of the Privy Council, delivered by Lord Clyde, in
             De Freitas v Permanent Secretary of Ministry of Agriculture,
             Fisheries, Lands and Housing [1999] 1 AC 69 at 80. But
             this decision, although it was a milestone in the development
             of the law, is now more important for the way in which it has
             been adapted and applied in the subsequent case-law,
D            notably R (Daly) v Secretary of State for the Home
             Department [2001] 2 AC 532 (in particular the speech of
             Lord Steyn), R v Shayler [2003] 1 AC 247 at paras 57-59
             (Lord Hope of Craighead), Huang v Secretary of State for
             the Home Department [2007] 2 AC 167 at para 19 (Lord
E            Bingham of Cornhill) and R (Quila) v Secretary of State for
             the Home Department [2012] 1 AC 621 at para 45. Their
             effect can be sufficiently summarised for present purposes
             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
F            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
G            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)

H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                681
                 [ASHOK BHUSHAN, J.]

        323. The principles of proportionality as noticed in the aforesaid        A
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.
                                                                                  B
       324. In the foregoing discussions, we come to the conclusion that
Rule 9 of Second Amendment Rules, 2017 fully satisfies three-fold test
as laid down in Puttaswamy case and the submission that the Rule is
unconstitutional has to be rejected. We answer Issue No. 14 in the
following manner:-
                                                                                  C
       Ans.14:- Rule 9 as amended by PMLA (Second Amendment)
               Rules, 2017 is not unconstitutional and does not violate
               Articles 14, 19(1)(g), 21 & 300A of the Constitution and
               Sections 3, 7 & 51 of the Aadhaar Act. Further Rule 9
               as amended is not ultra vires to PMLA Act, 2002.
                                                                                  D
 Issue No. 15          Circular dated 23.03.2017 issued by
                       Ministry of Communications, Department
                       of Telecommunications

       325. The petitioners have attacked the circular dated 23.03.2017
                                                                                  E
and submitted that the circular is ultra vires. By circular dated 23.03.2017,
Department of Telecommunications has directed that all licensees shall
re-verify all existing mobile subscribers (prepaid and postpaid) through
Aadhaar based e-kyc process. Petitioners submitted that linking the sim
with Aadhaar number is breach of privacy violating Article 21 of the
Constitution. Elaborating their challenge, it is contended that circular          F
dated 23.03.2017 is not covered by any of the provisions of Aadhaar Act
neither Section 7 nor Section 57. Circular dated 23.03.2017 is not a law
under Part III of the Constitution and thus same cannot put any restriction
on privacy right. It is submitted that circular dated 23.03.2017 does not
satisfy three-fold test as laid down in Privacy judgment.
                                                                                  G
      326. Learned counsel for the respondents justifying the linking of
Aadhaar with sim card submits that non- verifying sim cards, have caused
serious security threats, which has been noticed by this Court in several
judgments. It is submitted that circular dated 23.03.2017 was issued on
                                                                                  H
682             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     the basis of recommendation of Telecom Regulatory Authority of India.
      Respondents further submits that circular dated 23.03.2017 has been
      issued in reference to this Court’s direction in Lokniti Foundation Vs.
      Union of India and Another, (2017) 7 SCC 155. This court having
      approved the action, no exception can be taken by the petitioner to the
      circular dated 23.03.2017. It is submitted that the Central Government,
B
      which has right to grant license can always put a condition in the license
      obliging the licensee to verify the sim cards under the Aadhaar verification.
      To impose such condition is in the statutory power granted to the
      Government under Section 4 of the Indian Telegraph Act, 1885.
             327. We need to scrutinise the circular dated 23.03.2017 on the
C     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
D     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/s
              Union of India, while taking into cognizance of “Aadhaar based
E             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
F             completed, in case of existing subscribers.” This amounts to a
              direction which is to be completed within a time frame of one year.
              2. A meeting was held on 13.02.2017 in the Department with the
              telecom industry wherein UIDAI, TRAI and PMO representatives
              also participated to discuss the way forward to implement the
G             directions of Hon’ble Supreme Court. Detailed discussions and
              deliberations were held in the meeting. The suggestions received
              from the industry have been examined in the Department.



H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              683
                 [ASHOK BHUSHAN, J.]

        3. Accordingly, after taking into consideration the discussions held    A
        in the meeting and suggestions received from telecom industry, the
        undersigned is directed to convey the approval of competent authority
        that all Licensees shall re-verify all existing mobile subscribers
        (prepaid and postpaid) through Aadhaar based E-KYC process
        as mentioned in this office letter no. 800-29/2010-VAS dated
                                                                                B
        16.08.2016. The instructions mentioned in subsequent paragraphs
        shall be strictly followed while carrying out the re-verification
        exercise.”
        328. The circular of the Department of Telecommunications
directing the licensees to mandatorily verify existing sim subscribers in
turn resulted in mobile telephone service licensees directing the subscribers   C
to get their sim seeded with Aadhaar. Repeated messages and directions
have been issued by Cellular Mobile Telephone Service operators.
Compulsory seeding of Aadhaar with mobile numbers has to be treated
to be an intrusion in Privacy Right of a person. Any invasion on the
Privacy Right of a person has to be backed by law as per the three-fold         D
test enumerated in Puttaswamy case (supra). Existence of a law is
the foremost condition to be fulfilled for restricting any Privacy Right.
Thus, we have to first examine whether circular dated 23.03.2017 can
be said to be a ‘law’.
       329. The law as explained in Article 13(3) has to be applied for         E
finding out as to what is law. Article 13(3)(a) gives an inclusive definition
of law in following words:-
        (a) “law” includes any Ordinance, order, bye-law, rule, regulation,
        notification, custom or usage having in the territory of India the
        force of law;                                                           F
       330. The circular dated 23.03.2017 at best is only an executive
instruction issued on 23.03.2017 by the Ministry of Communications,
Department of Telecommunications. The circular does not refer to any
statutory provision or statutory base for issuing the circular. The subject
of circular as noted above indicate that circular has been issued for           G
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


                                                                                H
684            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     made in the circular itself. The order dated 06.02.2017 was issued by
      this Court in a Writ Petition filed by Lokniti Foundation Vs. Union of
      India and Another, (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
B
      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:-
C
              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
D               based E-KYC for issuing mobile connections’ on 16th August,
                2016 wherein the customer as well as Point of Sale (PoS)
                Agent of the TSP will be authenticated from Unique
                Identification Authority of India (UIDAI) based on their
                biometrics and their demographic data received from UIDAI
                is stored in the database of TSP along with time stamps. Copy
E               of letter No.800-29/2010-VAS dated 16.08.2016 is annexed
                herewith and marked as Annexure R-1/10.
                23. As on 31.01.2017, 111.31 Crores Aadhaar card has been
                issued which represent 87.09% of populations. However, still
                there are substantial number of persons who do not have
F               Aadhaar card because they may not be interested in having
                Aadhaar being 75 years or more of age or not availing any
                benefit of pension or Direct Benefit Transfer (DBT). Currently
                Aadhaar card or biometric authentication is not mandatory for
                obtaining a new telephone connection. As a point of information,
G               it is submitted that those who have Aadhaar card/number
                normally use the same for obtaining a new telephone connection
                using E-KYC process as mobile connection can be procured
                within few minutes in comparison to 1-2 days being taken in
                normal course.

H
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            685
              [ASHOK BHUSHAN, J.]

     24. That in this process, there will be almost ‘NIL’ chances of       A
     delivery of SIM to wrong person and the traceability of customer
     shall greatly improve. Further, since no separate document for
     Proof of Address or Proof of Identity will be taken in this
     process, there will be no chances of forgery of documents.”
   3. The learned Attorney General, in his endeavour to demonstrate        B
   the effectiveness of the procedure, which has been put in place,
   has invited our attention to the application form, which will be
   required to be filled up, by new mobile subscribers, using e-KYC
   process. It was the submission of the learned Attorney General,
   that the procedure now being adopted, will be sufficient to alleviate
   the fears, projected in the writ petition.                              C

   4. Insofar as the existing subscribers are concerned, it was
   submitted on behalf of the Union of India, that more than 90% of
   the subscribers are using pre-paid connections. It was pointed
   out, that each pre-paid connection holder, has to per force renew
   his connection periodically, by making a deposit for further user.      D
   It was submitted, that these 90% existing subscribers, can also
   be verified by putting in place a mechanism, similar to the one
   adopted for new subscribers. Learned Attorney General states,
   that an effective programme for the same, would be devised at
   the earliest, and the process of identity verification will be          E
   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       F
   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,         G
   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.”

                                                                           H
686             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A            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 to, as soon as possible”. The order of this Court as
      extracted above itself states that the Court itself did not give any direction
      rather noticed the stand of Union of India where it informed to the Court
B
      that the department has already launched Aadhaar based e-KYC for
      issuing mobile connections. For 90 per cent of the existing subscribers,
      Attorney General has stated that an effective programme would be
      devised at the earliest and will be completed within one year.
            333. We are clear in our mind that this Court on 06.02.2017 only
C     noticed the stand of the Union of India and disposed of the writ petition
      expecting that undertaking given to this Court shall be given effect to.
              334. The circular dated 23.03.2017 cites the order of this Court
      as a direction, which according to department was to be completed within
      the time frame of one year. Circular further states that the meeting was
D     held on 13.02.2017 in the Department with the telecom industry wherein
      UIDAI, TRAI and PMO representatives also participated.
             335. This Court thus in Lokniti case (supra) did not examine
      the Aadhaar based e-KYC process in context of right of privacy. Thus,
      the order of this Court dated 06.02.2017 cannot absolve the Government
E     from justifying its circular as per law.
            336. One of the submissions, which has been raised by the
      respondents to cite a statutory base to the circular is that the circular has
      been issued in pursuance of recommendation made by TRAI under
      Section 11(1)(a) of TRAI Act, 1997. Section 11 of the TRAI Act, 1997
F     provides for function of authority Section 11(1)(a):-
              (a) make recommendations, either suo motu or on a request
              from the licensor, on the following matters, namely:—
                (i) need and timing for introduction of new service provider;
G               (ii) terms and conditions of licence to a service provider;
                (iii) revocation of licence for non-compliance of terms and
                conditions of licence;
                                  xxxxxxxxxxxxxxxx

H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                  687
                 [ASHOK BHUSHAN, J.]

       337. One of the functions of the TRAI is to give recommendations             A
as per Section 11(1)(a) on the matters enumerated therein. The
recommendations of TRAI were only recommendations and the mere
fact that circular dated 23.03.2017 was issued after the recommendation
was sent by TRAI, circular dated 23.03.2017 does not acquire any
statutory character. Circular dated 23.03.2017 thus cannot be held to be
                                                                                    B
a law within the meaning of Part III of the Constitution.
         338. Shri 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               C
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                D
        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. Vs. R.K. Pathan and Others,
AIR 1963 SC 439, where this Court while considering the Industrial                  E
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 that what used to be
governed by a contract herebefore would now be governed by the                      F
Statutory Standing Orders.
       340. The above judgment at best can be read to mean that
conditions, which are enumerated in the Standing Orders become
statutory conditions. No benefit of the judgment can be taken by the
respondents in the present case since even if it is put in the condition in         G
the agreement between licensee and subscribers that licensee shall be
bound to instructions as issued by licensor, the said condition does not
become statutory nor take shape of a law. Sukhdev Singh and Others
Vs. Bhagatram Sardar Singh Raghuvanshi and Another, (1975) 1
SCC 421 was relied, where this Court held that rules and regulations
framed by ONGC, LIC and Industrial Finance Corporation have the                     H
688            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     force of law. There cannot be any denial that rules framed under statutory
      provisions will have force of law, thus, this case has no application.
      Similarly, reliance on Lily Kurian Vs. Sr. Lewina and Others, (1979)
      2 SCC 124, Alpana V. Mehta Vs. Maharashtra State Board of
      Secondary Education and Another, (1984) 4 SCC 27, St. Johns
      Teachers Training Institute Vs. Regional Director, National
B
      Council for Teacher Education and Another, (2003) 3 SCC 321
      were all cases, where conditions were laid down under the regulations,
      which were statutory in nature. Those cases in no manner help the
      respondents.
            341. Shri Dwivedi has also relied on judgment of this Court in
C     Union of India and Another Vs. Association of Unified Telecom
      Service Providers of India and Others, (2011) 10 SCC 543. This
      Court referring to Section 4 of the Telegraph Act laid down following in
      paragraph 39:-
              “39. The proviso to Sub-section (1) of Section 4 of the Telegraph
D             Act, however, enables the Central Government to part with this
              exclusive privilege in favour of any other person by granting a
              license in his favour on such conditions and in consideration of
              such payments as it thinks fit. As the Central Government owns
              the exclusive privilege of carrying on telecommunication activities
E             and as the Central Government alone has the right to part with
              this privilege in favour of any person by granting a license in his
              favour on such conditions and in consideration of such terms as
              it thinks fit, a license granted under proviso to Sub-section (1) of
              Section 4 of the Telegraph Act is in the nature of a contract
              between the Central Government and the licensee.”
F
              342. 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
G     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
H     looked into. Aadhaar Act has only two provisions under which Aadhaar
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             689
                 [ASHOK BHUSHAN, J.]

can be used, i.e. Section 7 and Section 57. Present is not a case of           A
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
                                                                               B
verification of sim of existing subscribers. There being no law framed
for such use of Aadhaar, Section 57 is also not attracted.
      344. There are only above two contingencies, where Aadhaar
can be used and circular dated 23.03.2017 being not covered by any of
above contingencies, circular dated 23.03.2017 deserves to be set aside.
                                                                               C
      Ans.15:- Circular dated 23.03.2017 being unconstitutional is set
              aside.
  Issue No. 16        W hether Aadhaar Act is a Money Bill and
                      decision of Speaker certifying it as Money Bill is
                      not subject to Judicial Review of this Court?            D

        345. The Aadhaar Act has been passed by Parliament as Money
Bill. Shri P. Chidambaram, learned senior counsel appearing for the
petitioners contends that Aadhaar Act is not a Money Bill, it being not
covered by any of the Clauses under Article 110 of the Constitution of
                                                                               E
India. He further submits that decision of the Speaker certifying Aadhaar
Bill as Money Bill being illegal and contrary to the express constitutional
provisions deserves to be interfered with and such decision of the Speaker
is also subject to Judicial Review by this Court. The word “only” used in
Article 110 has significance and a Bill, which does not contain only, the
provisions pertaining to Clause (a) to (f) cannot be regarded as Money         F
Bill. Respondents cannot fall on Clause (g) to support the Money Bill,
which clause cannot be invoked unless the provisions of Bill are covered
by any of the clauses from (a) to (f).
        346. Shri K.K. Venugopal, learned Attorney General refuting the
above submission submits that Aadhaar Bill has correctly been passed           G
as Money Bill. He submits that the certification granted by Speaker that
Aadhaar Bill is a Money Bill has been made final by virtue of Article
110(3), hence it cannot be questioned in any Court. The decision of
Speaker certifying the Bill as Money Bill is not subject to Judicial Review.
It is further submitted by learned Attorney General that even on looking
                                                                               H
690             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     the Aadhaar Bill on merits, it satisfies the conditions as enumerated under
      Article 110(1). He submits that Aadhaar Bill is clearly referable to
      Clause(c), Clause(e) and Clause(g) of Article 110(1). He submits that
      the heart of the Aadhaar Act is Section 7 which is with regard to payment
      of subsidies, benefits or services and for which the expenditure is incurred
      form the Consolidated Fund of India. Article 122 also puts an embargo
B
      in questioning validity of any proceedings in Parliament. 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:-
C
              “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:-
D               (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
E               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
F
                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;
G               (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 audit of the accounts of the Union or of
                a State; or
                (g) any matter incidental to any of the matters specified in
H               sub-clauses (a) to (f).
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               691
                 [ASHOK BHUSHAN, J.]

        (2) A Bill shall not be deemed to be a Money Bill by reason only         A
        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.
                                                                                 B
        (3) If any question arises whether a Bill is a Money Bill or not,
        the decision of the Speaker of the House of the People thereon
        shall be final.
        (4) There shall be endorsed on every Money Bill when it is
        transmitted to the Council of States under article 109, and when         C
        it is presented to the President for assent under article 111, the
        certificate of the Speaker of the House of the People signed by
        him that it is a Money Bill.
        122. Courts not to inquire into proceedings of Parliament.-
        (1) The validity of any proceedings in Parliament shall not be           D
        called in question on the ground of any alleged irregularity of
        procedure.
        (2) No officer or member of Parliament in whom powers are
        vested by or under this Constitution for regulating procedure or
        the conduct of business, or for maintaining order, in Parliament         E
        shall be subject to the jurisdiction of any court in respect of the
        exercise by him of those powers.”
       348. We need to first advert to the submission pertaining to question
as to whether decision of Speaker certifying the Bill as Money Bill is
subject to Judicial Review of this Court or being related to only procedure,     F
is immuned from Judicial Review under Article 122. Article 110(3) gives
finality to the decision of the Speaker of the House of the People on
question as to whether a Bill is Money Bill or not. The word occurring
in sub-article (3) of Article 110 are “shall be final”. Article 122(1) puts
an embargo on questioning the validity of any proceeding in the Parliament
on the ground of any alleged irregularity or procedure. The Constitution         G
uses different expressions in different articles like “shall be final”, “shall
not be questioned”, “shall not be questioned in any Court of Law” etc.
      349. This Court has examined the scope of Judicial Review in
reference to Parliamentary proceedings. A similar Constitutional
provision giving finality to the decision of the Speaker is contained in         H
692             SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A     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
B             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:
C                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.”
D            350. The Constitution Bench had occasion to consider Para 6 in
      Kihoto Hollohan Vs. Zachillhu and Others, 1992 Supp. (2) SCC
      651, Justice M.N. Venkatachaliah, as he then was elaborately considered
      the rival contentions. It was also contended before this Court that in
      view of the finality of the decision of the Speaker in Para 6 of Tenth
      Schedule, the decision of the Speaker is beyond Judicial Review. In
E     Para 78, following has been stated:-
              “78. These two contentions have certain overlapping areas
              between them and admit of being dealt with together. Paragraph
              6(1) of the Tenth Schedule seeks to impart a statutory finality to
              the decision of the Speaker or the Chairman. The argument is
F             that, this concept of `finality’ by itself, excludes Courts’ jurisdiction.
              Does the word “final” render the decision of the Speaker immune
              from Judicial Review? It is now well accepted that a finality
              clause is not a legislative magical incantation which has that effect
              of telling off Judicial Review. Statutory finality of a decision
G             presupposes and is subject to its consonance with the
              statute...............”
              In Para 80 to 85, following has been held:-
              80. In Durga Shankar Mehta v. Raghuraj Singh, AIR 1954 SC
              520 the order of the Election Tribunal was made final and
H             conclusive by Section 105 of the Representation of the People
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                   693
              [ASHOK BHUSHAN, J.]

   Act, 1951. The contention was that the finality and conclusiveness             A
   clauses barred the jurisdiction of the Supreme Court under Article
   136. This contention was repelled. It was observed: (AIR p.
   522)
     ...[B]ut once it is held that it is a judicial tribunal empowered
     and obliged to deal judicially with disputes arising out of or in            B
     connection with election, the overriding power of this Court to
     grant special leave, in proper cases, would certainly be attracted
     and this power cannot be excluded by any parliamentary
     legislation.
     ... But once that Tribunal has made any determination or                     C
     adjudication on the matter, the powers of this Court to interfere
     by way of special leave can always be exercised......
     ... The powers given by Article 136 of the Constitution however
     are in the nature of special or residuary powers which are
     exercisable outside the purview of ordinary law, in cases where              D
     the needs of justice demand interference by the Supreme Court
     of the land....
      Section 105 of the Representation of the People Act certainly
     gives finality to the decision of the Election Tribunal so far as
     that Act is concerned and does not provide for any further                   E
     appeal but that cannot in any way cut down or effect the
     overriding 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                     F
   Constitution camp up for consideration. This Court said: (SCC
   pp.410-1, Para32)
     ...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.
                                                                                  G
     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.”                     H
694    SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     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 was not reasonably
B       practicable to hold the inquiry is not binding upon the court.
        The court will also examine the charge of mala fides, if any,
        made in the writ petition. In examining the relevancy of the
        reasons, the court will consider the situation which according
        to the disciplinary authority made it come to the conclusion
        that it was not reasonably practicable to hold the inquiry. If the
C       court finds that the reasons are irrelevant, then the recording
        of its satisfaction by the disciplinary authority would be an abuse
        of power conferred upon it by Clause (b)....
      83. If the intendment is to exclude the jurisdiction of the superior
      Courts, the language would quite obviously have been different.
D     Even so, where such exclusion is sought to be effected by an
      amendment the further question whether such an amendment
      would be destructive of a basic feature of the Constitution would
      arise. But comparison of the language in Article 363(1) would
      bring out in contrast the kind of language that may be necessary
E     to achieve any such purpose.
      84. In Brundaban Nayak v. Election Commission of India [1965]
      3 SCR 53, in spite of finality attached by Article 192 to the decision
      of the Governor in respect of disqualification incurred by a
      member of a State Legislature subsequent to the election, the
F     matter was examined by this Court on an appeal by special leave
      under Article 136 of the Constitution against the decision of the
      High Court dismissing the writ petition filed under Article 226 of
      the Constitution. Similarly in Union of India v. Jyoti Prakash Mitter
      [1971] 3 SCR 483, in spite of finality attached to the order of the
      President with regard to the determination of age of a Judge of
G     the High Court under Article 217(3) of the Constitution, this Court
      examined the legality of the order passed by the President during
      the pendency of an appeal filed under Article 136 of the
      Constitution.
      85. There is authority against the acceptability of the argument
H     that the word “final” occurring in Paragraph 6(1) has the effect
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              695
                 [ASHOK BHUSHAN, J.]

        of excluding the jurisdiction of the Courts in Articles 136, 226        A
        and 227.”
       351. The above Constitution Bench Judgment clearly support the
case of the petitioners that finality attached to the decision of the Speaker
under Article 110(3) does not inhibit the Court in exercising its Judicial
Review. We may also refer to the Constitution Bench judgment of this            B
Court in Special Reference No. 1 of 1964, AIR 1965 SC 745 where this
Court had occasion to consider Article 212, which is a provision relating
to the legislature of the State para 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       C
next case, which needs to be considered is again a Constitution Bench
judgment of this Court in Raja Rampal Vs. Hon’ble Speaker, Lok
Sabha and Others, (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            D
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:-
                                                                                E
        “364. The submissions of the learned Counsel for the Union of
        India and the learned Additional Solicitor General seek us to read
        a finality clause in the provisions of Article 122(1) in so far as
        parliamentary proceedings are concerned. On the subject of
        finality clauses and their effect on power of judicial review, a
        number of cases have been referred that may be taken note of            F
        at this stage.”
      352. In Paras 376, 377, 384 and 386 following has been held:-
        “376. In our considered view, the principle that is to be taken
        note of in the aforementioned series of cases is that                   G
        notwithstanding the existence of finality clauses, this Court
        exercised its jurisdiction of judicial review whenever and wherever
        breach of fundamental rights was alleged. The President of India
        while determining the question of age of a Judge of a High Court
        under Article 217(3), or the President of India (or the Governor,
        as the case may be) while taking a decision under Article 311(3)        H
696    SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     to dispense with the ordinarily mandatory inquiry before dismissal
      or removal of a civil servant, or for that matter the Speaker (or
      the Chairman, as the case may be) deciding the question of
      disqualification under Para 6 of the Tenth Schedule may be acting
      as authorities entrusted with such jurisdiction under the
      constitutional provisions. Yet, the manner in which they exercised
B
      the said jurisdiction is not wholly beyond the judicial scrutiny. In
      the case of the Speaker exercising jurisdiction under the Tenth
      Schedule, the proceedings before him are declared by Para 6(2)
      of the Tenth Schedule to be proceedings in Parliament within the
      meaning of Article 122. Yet, the said jurisdiction was not accepted
C     as non-justifiable. In this view, we are unable to subscribe to the
      proposition that there is absolute immunity available to the
      Parliamentary proceedings relating to Article 105(3). It is a
      different matter as to what parameters, if any, should regulate or
      control the judicial scrutiny of such proceedings.
D     377. In U.P. Assembly case (Special Reference No.1 of 1964),
      AIR 1965 SC 745, the issue was authoritatively settled by this
      Court, and it was held, at SCR pp. 455-56, as under: (AIR p.768,
      para 62)
        “Article 212(1) seems to make it possible for a citizen to call in
E       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
        scrutinized in a court of law, though such scrutiny is prohibited
F       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
G     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
H     following observations: (SCC p. 572, para 94)
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              697
              [ASHOK BHUSHAN, J.]

     “94. We have already indicated the constitutional scheme in             A
     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
                                                                             B
     finding of ‘guilty’ in the report before Parliament takes it up
     for consideration along with the motion for his removal. Along
     with the decision in U.P. Assembly Case (Special Reference
     No. 1 of 1964) has to be read the declaration made in Sub-
     Committee on Judicial Accountability, (1991) 4 SCC 699 that
     ‘a law made under Article 124(5) will override the rules made           C
     under Article 118 and shall be binding on both the Houses of
     Parliament. A violation of such a law would constitute
     illegality and could not be immune from judicial scrutiny
     under Article 122(1).’ The scope of permissible challenge by
     the Judge concerned to the order of removal made by the
                                                                             D
     President under Article 124(4) in the judicial review available
     after making of the order of removal by the President will be
     determined on these considerations.”
                                                   (Emphasis supplied)
   386. Article 122(1) thus must be found to contemplate the twin            E
   test of legality and constitutionality for any proceedings within
   the four walls of Parliament. The fact that the U.P. Assembly
   case (Special Reference No.1 of 1964) dealt with the exercise
   of the power of the House beyond its four walls does not affect
   this view which explicitly interpreted a constitutional provision
   dealing specifically with the extent of judicial review of the internal   F
   proceedings of the legislative body. In this view, Article 122(1)
   displaces the English doctrine of exclusive cognizance of internal
   proceedings of the House rendering irrelevant the case law that
   emanated from courts in that jurisdiction. Any attempt to read a
   limitation into Article 122 so as to restrict the court’s jurisdiction    G
   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
                                                                             H
698            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A             that prohibition against examination on the touchstone of
              “irregularity of procedure” does not make taboo judicial review
              on findings of illegality or unconstitutionality.”
              353. The above case is a clear authority for the proposition that
      Article 122 does not provide for immunity in case of illegality. What is
B     protected is only challenge on the ground of any irregularity or procedure.
      The immunity from calling in question the Parliamentary decision on the
      ground of violation of procedure as has been provided in the Constitution
      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.
C
             354. Shri K.K. Venugopal relied on Two Judgments of this Court
      in support of his submission namely, Mohd. Saeed Siddiqui Vs. State
      of Uttar Pradesh and Another, (2014) 11 SCC 415 and Yogendra
      Kumar Jaiswal and Others Vs. State of Bihar and Others, (2016)
      3 SCC 183. He submits that in both the decisions, this Court while
D     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
E     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
F             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 paper in the eye of the law. The Bill
              in question was presented as a Money Bill when, on the face of
              it, it could never be called as a Money Bill as defined in Articles
G             199(1) and 199(2) of the Constitution of India. Since the
              procedure for an Ordinary Bill was not followed and the assent
              of the Governor was obtained to an inchoate and incomplete Bill
              which had not even gone through the mandatory requirements
              under the Constitution of India, the entire action was
              unconstitutional and violative of Article 200 of the Constitution
H             of India.”
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            699
                 [ASHOK BHUSHAN, J.]

       356. This Court after noticing Articles 199 and 212, which are         A
pari materia to Articles 109 and 122 stated that proceeding in support
of legislature cannot be called into question on the ground that they have
not been carried on in accordance with the rules of business. This Court
considered the issues from Paragraphs 34 to 38, which is to the following
effect:-
                                                                              B
        “34. The above provisions make it clear that the finality of the
        decision of the Speaker and the proceedings of the State
        Legislature being important privilege of the State Legislature,
        viz., freedom of speech, debate and proceedings are not to be
        inquired by the Courts. The “proceeding of the legislature”
        includes everything said or done in either House in the transaction   C
        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        D
        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.                            E

        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            F
        conscious of the fact that in the decision of this Court in Raja
        Ram Pal v. Lok Sabha (2007) 3 SCC 184, 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.                                                    G
        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.                        H
700            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A             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
B               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
C               (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
D             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.
              38. Besides, the question whether a Bill is a Money Bill or not
E             can be raised only in the State Legislative Assembly by a member
              thereof when the Bill is pending in the State Legislature and
              before it becomes an Act. It is brought to our notice that in the
              instant case no such question was ever raised by anyone.”
             357. This Court came to the conclusion that question pertaining
F     to the procedure in the House could not have been questioned by virtue
      of Article 212. Another judgment, which has been relied by learned
      Attorney General is judgment of this Court in Yogendra Kumar Jaiswal
      (supra). The above judgment was rendered by Two Judge Bench. This
      Court in the above case examined the question whether introduction of
      Orissa Special Courts Act, 2006 as a Money Bill could be called in question
G
      in a Court. This Court considered the issue in Paragraphs 38 to 43,
      which are to the following effect:-
              “38. First, we shall take up the issue pertaining to the introduction
              of the Bill as a Money bill in the State Legislature. Mr. Vinoo
              Bhagat, learned Counsel appearing for some of the appellants,
H
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            701
              [ASHOK BHUSHAN, J.]

   has laid emphasis on the said aspect. Article 199 of the                A
   Constitution, defines “Money Bills”. For our present purpose,
   Clause (3) of Article 199 being relevant is reproduced below:
     “199.(3). If any question arises whether a Bill introduced in
     the legislature of a State which has a Legislative Council is a
     Money Bill or not, the decision of the Speaker of the Legislative     B
     Assembly of such State thereon shall be final.
   We have extracted the same as we will be referring to the
   authorities as regards interpretation of the said clause.
   39. Placing reliance on Article 199, the learned Counsel would
   submit that the present Act which was introduced as a money             C
   bill has remotely any connection with the concept of money bill.
   It is urged by him that the State has made a Sisyphean endeavour
   to establish some connection. The High Court to repel the
   challenge had placed reliance upon Article 212 which stipulates
   that the validity of any proceedings in the Legislature of a State      D
   shall not be called in question on the 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           E
   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         F
   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            G
   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
   a court of law, though such scrutiny is prohibited if the complaint
                                                                           H
702    SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     against the procedure is not more than that the procedure was
      irregular. Thus, the said authority has made a distinction between
      illegality of procedure and irregularity of procedure.
      41. Our attention has also been drawn to certain paragraphs
      from the Constitution Bench decision in Raja Ram Pal v. Lok
B     Sabha (2007) 3 SCC 184. In the said case, in paras 360 and 366,
      it has been held thus: (SCC pp. 347 & 350)
       “360. The question of extent of judicial review of parliamentary
       matters has to be resolved with reference to the provision
       contained in Article 122(1) that corresponds to Article 212
C      referred to in M.S.M. Sharma v. Shree Krishna Sinha AIR
       1960 SC 1186 [Pandit Sharma (2)]. On a plain reading, Article
       122(1) prohibits “the validity of any proceedings in Parliament”
       from being ‘called in question’ in a court merely on the ground
       of “irregularity of procedure”. In other words, the procedural
       irregularities cannot be used by the court to undo or vitiate
D      what happens within the four walls of the legislature. But then,
       “procedural irregularity” stands in stark contrast to “substantive
       illegality’ which cannot be found included in the former. We
       are of the considered view that this specific provision with
       regard to check on the role of the judicial organ vis-à-vis
E      proceedings in Parliament uses language which is neither vague
       nor ambiguous and, therefore, must be treated as the
       constitutional mandate on the subject, rendering unnecessary
       search for an answer elsewhere or invocation of principles of
       harmonious construction.

F                                    ***
       366. The touchstone upon which parliamentary actions within
       the four walls of the legislature were examined was both the
       constitutional as well as substantive law. The proceedings
       which may be tainted on account of substantive illegality or
G      unconstitutionality, as opposed to those suffering from mere
       irregularity thus cannot be held protected from judicial scrutiny
       by Article 122(1) inasmuch as the broad principle laid down in
       Bradlaugh (1884) LR 12 QBD 271 : 53 LJQB 290 : 50 LT 620
       (DC), acknowledging exclusive cognizance of the legislature
       in England has no application to the system of governance
H
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             703
                [ASHOK BHUSHAN, J.]

         provided by our Constitution wherein no organ is sovereign           A
         and each organ is amenable to constitutional checks and
         controls, in which scheme of things, this 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        B
       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               C
       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        D
       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 from judicial scrutiny.          E
       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 in Mohd. Saeed Siddiqui
       (supra), comes within the concept of “irregularity” and it does        F
       come with the realm of substantiality. What 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)           G
       and hence, we unhesitatingly hold that there is no merit in the
       submission so assiduously urged by the learned Counsel for the
       appellants.”
     358. The consideration in the above case indicate that this Court
has merely relied on judgment of Three Judge Bench in Mohd. Saeed             H
704             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     Siddiqui (supra). The Court based its decision on finality attached to
      the decision of the Speaker in Article 199(3) as well as bar on challenge
      of proceeding of the legislature on an irregularity procedure as contained
      in Article 212. The question is, where a Speaker certify a Bill as a
      Money Bill and it is introduced and passed as a Money Bill, this only a
      question of procedure or not? Article 107 contains provisions as to
B
      introduction of passing of bills. Article 107(2) state that subject to the
      provisions of Articles 108 and 109, a Bill shall not be deemed to have
      been passed by the Houses of Parliament unless it has been agreed to
      by both Houses of Parliament. However, the requirement of passing a
      Bill by both the Houses is not applicable in case of Money Bills. Article
C     110 defines as to what is the Money Bill. A Money Bill is constitutionally
      defined and a Bill shall be a Money Bill only if it is covered by Article
      110(1). A Bill, which does not fulfill the conditions as enumerated in
      Article 110(1) and it is certified as Money Bill, whether the Constitutional
      conditions enumerated in Article 110(1) shall be overridden only by
      certificate of Speaker?
D
             359. We have noticed the Constitution Bench Judgment in Kihoto
      Hollohan (supra) and Raja Ram Pal (supra) that finality of the decision
      of the Speaker is not immuned from Judicial Review. All Bills are required
      to be passed by both Houses of Parliament. Exception is given in case
      of Money Bills and in the case of joint sitting of both houses. In event,
E     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
F     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
G     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 Three Judge Bench
H     Judgment of this Court in Mohd. Saeed Siddiqui (supra) and Two
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              705
                 [ASHOK BHUSHAN, J.]

Judge Bench judgment of this Court in Yogendra Kumar Jaiswal                    A
(supra) does not lay down the correct law. We, thus, conclude that the
decision of the Speaker certifying the Aadhaar Bill as Money Bill is not
immuned from Judicial Review.
       360. We having held that the decision of Speaker certifying the
Aadhaar Bill as a Money Bill is open to Judicial Review. We now proceed         B
to examine as to whether Speaker’s decision certifying the Aadhaar Bill
as Money Bill contravenes any of the Constitutional provisions, i.e.,
Whether the decision is vitiated by any Constitutional Illegality? For
determining the main issue, which need to be answered is as to whether
Aadhaar Bill is covered by any of Clauses (a) to (f) of Article 110(1).
That Clause(g) shall be applicable only when any of Clauses (a) to (f)          C
are attracted. Clause (g) which contemplate that any matter incidental
to any of the matters specified in sub-clauses (a) to (f), can be a provision
in a Bill presupposes that main provisions have to fall in any of the Clauses
(a) to (f). The heart of the Aadhaar Act is Section 7, which is to the
following effect:-                                                              D
        “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        E
        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:                                                          F

           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.”
                                                                                G
       361. 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, has been provided by Section 7,
i.e. undergoing of an individual to an authentication. The Preamble of
the Act as well as objects and reasons as noticed above also indicate
that the Act has been enacted to provide for, as a good governance,             H
706             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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
B
      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).
C     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
D     to mention here that in Constituent Assembly, an amendment was moved
      for deletion of word “only” on 20.05.1949, Hon’ble Shri Ghanshyam
      Singh Gupta moved the amendment in Draft Article 90. It is useful to
      extract the above debate, which is to the following effect:-
              The Honourable Shri Ghanshyam Singh Gupta (C.P. &
E             Berar: General): Sir, I beg to move:
              “That in clause (1) of article 90, the word `only’ be deleted.”
              This article is a prototype of Section 37 of the Government of
              India Act which says that a Bill or amendment providing for
              imposing or increasing a tax or borrowing money, etc. shall not
F             be introduced or moved except on the recommendation of the
              Governor-General. This means that the whole Bill need not be a
              money Bill: it may contain other provisions, but if there is any
              provision about taxation or borrowing, etc. It will come under
              this Section37, and the recommendation of the Governor-General
G             is necessary. Now article 90 says that a Bill shall be deemed to
              be a money Bill if it contains only provisions dealing with the
              imposition, regulation, etc., of any tax or the borrowing of money,
              etc. This can mean that if there is a Bill which has other provisions
              and also a provision about taxation or borrowing etc., it will not
              become a money Bill. If that is the intention I have nothing to
H             say; but that if that is not the intention I must say the word “only”
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               707
                 [ASHOK BHUSHAN, J.]

        is dangerous, because if the Bill does all these things and at the       A
        same time does something else also it will not be a money Bill. I
        do not know what the intention of the Drafting Committee is but
        I think this aspect of the article should be borne in mind.”
       363. After discussion, Mr. Naziruddin Ahmad also suggested that
the position of the word “only” in connection with Amendment No.1669             B
should be specially considered. It is a word which is absolutely misplaced.
On that day, the consideration was deferred and again in the debate on
06.06.1949, Constituent Assembly took up the discussion. The President
of the Constituent Assembly placed the amendment for vote on
08.06.1949, which amendment was negativated. Thus, use of word
“only” in Article 110(1) has its purpose, which is a clear restriction for a     C
Bill to be certified as a Money Bill.
        364. Other provisions of the Act can be said to be incidental to
the above matter. The architecture of the Aadhaar Act veer round the
Government’s constitutional obligation to provide for subsidies, benefits
and services to the individuals, who are entitled for such subsidies, benefits   D
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           E
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(!). Suffice it to say that Section 57 is a
provision which clarifies that nothing contained in Aadhaar Act shall            F
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 when Aadhaar Number is allocated to an individual after completing          G
the process under the Act. Section 57 is also a incidental provision
covered by sub-clause(g) of Article 110(1). Section 57 is a limitation
imposed under the Act on the use of Aadhaar Number by State or any
body corporate or any private party. We, thus, are of the view that
Aadhaar Bill has rightly been certified as the Money Bill by the Speaker,
                                                                                 H
708            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     which decision does not violate any constitutional provision, hence does
      not call for any interference in this proceeding. Issue No. 16 is answered
      in the following manner:-
            Ans.16:- Aadhaar Act has been rightly passed as Money Bill.
                     The decision of Speaker certifying the Aadhaar Bill, 2016
B                    as Money Bill is not immuned from Judicial Review.
        Issue No. 17         Whether Section 139-AA of the Income
                             Tax Act, 1961 is unconstitutional in view
                             of the Privacy judgment in Puttaswamy
                             case?
C           365. Section 139-AA was challenged by a bunch of writ petitions,
      which were decided by this Court in Binoy Viswam Vs. Union of India
      and Others, (2017) 7 SCC 59. The writ petitions were disposed of
      upholding the vires of Section 139-AA. Para 136 of the judgment contains
      operative portion, which is to the following effect:-
D             “136. Subject to the aforesaid, these writ petitions are disposed
              of in the following manner:
              136.1 We hold that the 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.
E             136.2. We do not find any conflict between the provisions of
              the Aadhaar Act and Section 139AA of the Income Tax Act
              inasmuch as when interpreted harmoniously, they operate in
              distinct fields.
              136.3. Section 139-AA of the Act is not discriminatory nor it
F             offends equality Clause enshrined in Article 14 of the Constitution.
              136.4. Section 139-AA is also not violative of Article 19(1)(g)
              of the Constitution insofar as it mandates giving of Aadhaar
              enrollment number for applying for PAN cards, in the income
              tax returns or notified Aadhaar enrollment number to the
G             designated authorities. Further, the proviso to Sub-section (2)
              thereof has to be read down to mean that it would operate only
              prospectively.
              136.5 The validity of the provision upheld in the aforesaid manner
              is subject to passing the muster of Article 21 of the Constitution,
H             which is the issue before the Constitution Bench in Writ Petition
            JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            709
                          [ASHOK BHUSHAN, J.]

                 (Civil) No. 494 of 2012 and other connected matters. Till then,       A
                 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          B
         of the Constitution, which was the issue pending before the Constitution
ncome
  view   Bench in Writ Petition (C) No. 494 of 2012 and other connected matters.
wamy     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          C
         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.                D
                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 the proportionality test to be applied. In
         addition to tests propounded by a Constitution Bench in Puttaswamy
                                                                                       E
         case, an additional test as propounded by a Five Judges Constitution
         Bench of this Court in Shayara Bano Vs. Union of India, (2017) 9
         SCC 1, Justice R.F. Nariman has laid down a test of “manifest
         arbitrariness”. Reading the Nine Judge Bench decision in Puttaswamy
         case and Five Judge Bench decision in Shayara Bano’s case, the
         Petitioner can succeed to the challenge to Section 139-AA only if they        F
         successfully demonstrate the said provision to be violative of Right to
         Privacy on the basis of the following tests:-
              (i)     Absence of law;
              (ii)    Absence of Legitimate State Interest;
              (iii)   The provision being hit by lack of proportionality.              G
              (iv)    The provision being manifestly arbitrary, which can be traced
                      to Article 14. [The test to determine “manifest arbitrariness”
                      is to decide whether the enactment is drastically
                      unreasonable and / or capricious, irrational or without
                      adequate determining principle”]                                 H
710              SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A            368. The learned Attorney General relies on following interest,
      which according to him are safeguarded by Section 139-AA to satisfy
      the legitimate State interest:-
           a.        To prevent income tax evasion by requiring, through an
                     amendment to the Income Tax Act, that the Aadhaar
B                    number be linked with the PAN; and
           b.        Prevention, accumulation, circulation and use of black
                     money and money laundering by imposing a requirement
                     by law for linking Aadhaar for opening bank accounts;
           c.        To prevent terrorism and protect national security and
C                    prevention of crime by requiring that Aadhaar number be
                     linked to SIM cards for mobile phones.
            369. Binoy Viswam has examined Section 139-AA on the
      Principle of Doctrine of Proportionality in Paragraphs 123 to 125:-
                “123. Keeping in view the aforesaid parameters and principles
D               in mind, we proceed to discuss as to whether the “restrictions”
                which would result in terms of the proviso to sub-section (2) of
                Section 139-AA of the Act are reasonable or not.
                124. Let us revisit the objectives of Aadhaar, and in the process,
                that of Section 139-AA of the Act in particular.
E               125. By making use of the technology, a method is sought to be
                devised, in the form of Aadhaar, whereby identity of a person is
                ascertained in a flawless manner without giving any leeway to
                any individual to resort to dubious practices of showing multiple
                identities or fictitious identities. That is why it is given the
F               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
G               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
H               social standing to these deprived and underprivileged classes. It
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             711
              [ASHOK BHUSHAN, J.]

   is not that Government has not taken steps in this direction from        A
   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              B
   achieved in the last 25 years, after the country adopted the policy
   of liberalisation and entered the era of, what is known as,
   globalisation. Economic growth in the last decade has been
   phenomenal and for many years, the Indian economy grew at
   highest rate in the world. At the same time, it is also a fact that in
   spite of significant political and economic success which has            C
   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         D
   as under:
     “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      E
     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           F
     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 continued lack of essential social services (from
     schooling and health care to the provision of safe water and
     drainage) for a huge part of the population. As we will presently      G
     discuss, while India has been overtaking other countries in the
     progress of its real income, it has been overtaken in terms of
     social indicators by many of these countries, even within the
     region of South Asia itself (we go into this question more fully
     in Chapter 3, ‘India in Comparative Perspective’).                     H
712    SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A       To point to just one contrast, even though India has significantly
        caught up with China in terms of GDP growth, its progress has
        been very much slower than China’s in indicators such as
        longevity, literacy, child undernourishment and maternal
        mortality. In South Asia itself, the much poorer economy of
        Bangladesh has caught up with and overtaken India in terms
B
        of many social indicators (including life expectancy,
        immunisation of children, infant 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
C       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.”
D
      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
E     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, devised
F     and floated from time to time by the Government, keeping aside
      substantial amount of money earmarked for spending on socially
      and economically backward classes. 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
G     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
H     15 paisa thereof actually reaches those persons for whom it is
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            713
                [ASHOK BHUSHAN, J.]

       meant. It cannot be doubted that with UID/Aadhaar much of             A
       the malaise in this field can be taken care of.
       125.2. Menace of corruption and black money has reached
       alarming proportion in this country. It is eating into the economic
       progress which the country is otherwise achieving. It is not
       necessary to go into the various reasons for this menace.             B
       However, it would be pertinent to comment that even as per the
       observations of the Special Investigation Team (SIT) on black
       money headed by Justice M.B. Shah, one of the reasons is that
       persons have the option to quote their PAN or UID or passport
       number or driving licence or any other proof of identity while
       entering into financial/business transactions. Because of this        C
       multiple methods of giving proofs of identity, there is no
       mechanism/system at present to collect the data available with
       each of the independent proofs of ID. For this reason, even SIT
       suggested that these databases be interconnected. To the same
       effect is the recommendation of the Committee headed by               D
       Chairman, CBDT on measures to tackle black money in India
       and abroad which also discusses the problem of money laundering
       being done to evade taxes under the garb of shell companies by
       the persons who hold multiple bogus PAN numbers under different
       names or variations of their names. That can be possible if one
       uniform proof of identity, namely, UID is adopted. It may go a        E
       long way to check and minimise the said malaise.
       125.3. Thirdly, Aadhaar or UID, which has come to be known
       as the most advanced and sophisticated infrastructure, may
       facilitate law-enforcement agencies to take care of problem of
       terrorism to some extent and may also be helpful in checking the      F
       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.”                G
      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:-                                                   H
714             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A             “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.”
B            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 financial institutions. In Paragraph 640, Justice
      Kaul has held:-
C             “640. It would be useful to turn to the European Union Regulation
              of 2016. Restrictions of the right to privacy may be justifiable in
              the following circumstances subject to the principle of
              proportionality:
                   (a) Other fundamental rights: The right to privacy must
D               be considered in relation to its function in society and be
                balanced against other fundamental rights.
                   (b) Legitimate national security interest.
                   (c) Public interest including scientific or historical research
                purposes or statistical purposes.
E
                   (d) Criminal offences: The need of the competent
                authorities for prevention investigation, prosecution of criminal
                offences including safeguards against threat to public security;
                    (e) The unidentifiable data: The information does not relate
                to identified or identifiable natural person but remains
F
                anonymous. The European Union Regulation of 2016 refers to
                “pseudonymisation” which means the processing of personal
                data in such a manner that the personal data can no longer be
                attributed to a specific data subject without the use of additional
                information, provided that such additional information is kept
G               separately and is subject to technical and organisational
                measures to ensure that the personal data are not attributed to
                an identified or identifiable natural person;
                  (f) The tax, etc.: The regulatory framework of tax and
                working of financial institutions, markets may require disclosure
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            715
                 [ASHOK BHUSHAN, J.]

          of private information. But then this would not entitle the         A
          disclosure of the information to all and sundry and there should
          be data protection rules according to the objectives of the
          processing. There may however, be processing which is
          compatible for the purposes for which it is initially collected.”
       373. Section 139-AA thus clearly enacted to fulfill the legitimate     B
State interest. Section 139-A which came into effect w.e.f. 01.04.1989
provide for Permanent Account Number (PAN) and the provision also
provided that statutory mandatory provisions as to when “every person”
shall quote such number (PAN number) for various purposes as
enumerated in Section 139A. Introduction of Section 139-AA is an
extension and implication of Section 139A. The introduction of Section        C
139-AA was for the purpose of eliminating duplicate PANs from the
system with the help of a robust technology solution.
      374. The new Section 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                   D
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         E
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           F
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 financial frauds. The above            G
submission need not detain us since Aadhaar number can be obtained by
the individuals and not by the entities hence Section-139AA can only
apply to individuals. In any event, the legislature cannot be expected to
address all issues relating to a particular evil at one go. Section 139-AA
                                                                              H
716             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     is a required first step to weed out fake PANs for individuals; it is perfectly
      acceptable for the legislature to weed out fake PANs for other tax-
      paying entities at a later stage. Such a view is also endorsed in judicial
      decisions. In Namit Sharma Vs. Union of India, (2013) 1 SCC 745
      (per Swatanter Kumar, J.) this Court observed:-
B             “43. The rule of equality or equal protection does not require
              that a State must choose between attacking every aspect of a
              problem or not attacking the problem at all, and particularly with
              respect to social welfare programme. So long as the line drawn
              by the State is rationally supportable, the courts will not interpose
              their judgment as to the appropriate stopping point.…........”
C
             376. Thus, the legislature is within its remit to only target individual
      assessees with Section 139-AA, and not every other tax-paying entity.
      The law does not have to provide for complete coverage of tax-payers
      who may be indulging in financial fraud but may envisage ‘degrees of
      harm’ and act on that basis. In this context, the Aadhaar number is being
D     mandated for all individual assessees. This is applicable to natural persons
      as well as persons who together constitute legal persons (e.g. Partners
      in a partnership, members of a company etc.) and hence provides
      significant coverage to weed out duplicate PANs and hence reduce the
      incidence of financial and tax frauds through these means. Aadhaar’s
E     inclusion into PAN is meant to curb tax evasion, sham transactions, entry
      providers which are rampantly carried out on account of bogus PANs.
      Aadhaar’s unique de-duplication based on biometric identification has
      been hailed as the most sophisticated system by the World Bank. Inclusion
      of Aadhaar into PAN eliminates the inequality between honest tax payers
      and non-compliant, dishonest ones who get away without paying taxes.
F     Inclusion of Aadhaar into PAN promotes rather than negates equality.
      It bolsters equality and is consistent with Article 14.
             377. In result, Section 139-AA is fully compliant of three-fold test
      as laid down in Puttaswamy’s case. Section 139-AA, thus does not
      breach fundamental Right of Privacy of an individual and Section 139-
G     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.


H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             717
                 [ASHOK BHUSHAN, J.]

                                                                               A
   Issue No. 18         Whether A adhaar Act violates the Interim
                        Orders passed by this Court in Writ
                        Petition (C) No. 494 of 2012?
       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         B
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”.                                               C

      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            D
        proceed in the following manner:-
          1. 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;
          2. The production of an Aadhaar card will not be condition for       E
          obtaining any benefits otherwise due to a citizen;
          3. 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          F
          Aadhaar card may also be used for the purpose of the 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       G
          as may be directed by a Court for the purpose of criminal
          investigation.”
      By subsequent order of 15.10.2015, some more Schemes were
included.
                                                                               H
718            SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A            380. It is submitted that the Central Government and the State
      Government issued various notifications numbering 139, requiring
      Aadhaar authentication for various benefits, subsidies and schemes. The
      issuance of such orders is in breach of above Interim Orders passed by
      this Court.
B           381. In Binoy Viswam (supra) an argument was advanced that
      enactment of Section 139-AA was in breach of the Interim Order passed
      in Writ Petition (C) No. 494 of 2012. The said argument was considered
      and in Para 99 it was held as follows:
             “99. Main emphasis, however, is on the plea that Parliament or
C            any State Legislature cannot pass a law that overrules a judgment
             thereby nullifying the said decision, that too without removing
             the basis of the decision. This argument appears to be attractive
             inasmuch as few orders are passed by this Court in pending writ
             petitions which are to the effect that the enrolment of Aadhaar
             would be voluntary. However, it needs to be kept in mind that
D            the orders have been passed in the petitions where Aadhaar
             Scheme floated as an executive/administrative measure has been
             challenged. In those cases, the said orders are not passed in a
             case where the Court was dealing with a statute passed by
             Parliament. Further, these are interim orders as the Court was
E            of the opinion that till the matter is decided finally in the context
             of right to privacy issue, the implementation of the said Aadhaar
             Scheme would remain 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
F            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
G            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
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               719
                 [ASHOK BHUSHAN, J.]

           were passed when the Aadhaar Act was not even enacted.                A
           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.”
       382. We have noticed that the Writ Petition (C) No. 494 of 2012           B
was filed at the time when Aadhaar Scheme was being implemented on
the basis of executive’s instructions dated 28.01.2009. In the Writ Petition
filed prior to enactment of Act, 2016, challenge to Aadhaar Scheme was
founded on following:-
     i.         The requirement of making Aadhaar mandatory for availing         C
                benefits under various social service schemes by way of
                an executive order and
     ii.        Concerns regarding the right to privacy of the individuals,
                which emanated on account of collection of biometric data
                under the Aadhaar scheme, which is without any legislative       D
                backing.
       383. Aadhaar Act, 2016 gives legislative backing to the Aadhaar
Scheme. The Act contains specific provisions prohibiting disclosure of
core biometric information collected in Aadhaar enrolment. It is submitted
that Schemes notified under Section 7 of the Act were on the strength of         E
Aadhaar enactment and cannot be said to be a violation of interim orders
of this Court. The submission that interim orders directed the Aadhaar
to be voluntary, it is submitted by the respondent that consent was
obtained from individuals, who came for enrolment under the Aadhaar
Act. It is submitted that all those, who were enrolled under the Statutory
Scheme dated 28.01.2009, the consent was given by the individuals in             F
verifying their informations.
       384. We, thus, conclude that Aadhaar Act cannot be struck down
on the ground that it is in violation of interim orders passed by this Court
in Writ Petition (C) No. 494 of 2012. Issue No. 18 is answered in
following manner:-                                                               G
          Ans.18:- The Aadhaar Act does not violate the interim orders
                  passed in Writ Petition (C) No. 494 of 2012 and other
                  Writ Petitions.

                                                                                 H
720              SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A            385. I had gone through the erudite and scholarly opinion of Justice
      A.K.Sikri (which opinion is on his own behalf and on behalf of Chief
      Justice and Justice A.M.Khanwilkar) with which opinion I broadly agree.
      Rule 9 as amended by PMLA (Second Amendment) Rules, 2017 has
      been struck down by my esteemed brother which provision has been
      upheld by me. My reasons and conclusions are on the same line except
B
      few where my conclusions are not in conformity with the majority opinion.
      CONCLUSIONS:-
            386. In view of above discussions, we arrive at following
      conclusions:-
C          (1)     The requirement under Aadhaar Act 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
D                  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
E
                   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
F                  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
G                  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.

H
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                           721
              [ASHOK BHUSHAN, J.]

 (9)    Section 33 cannot be said to be unconstitutional as it provides   A
        for the use of Aadhaar data base for police investigation
        nor it can be said to violate protection granted under Article
        20(3).
 (10)   Section 47 of the Aadhaar Act cannot be held to be
        unconstitutional on the ground that it does not allow an          B
        individual who finds that there is a violation of Aadhaar Act
        to initiate any criminal process.
 (11)   Section 57, to the extent, which permits use of Aadhaar by
        the State or any body corporate or person, in pursuant to
        any contract to this effect is unconstitutional and void. Thus,   C
        the last phrase in main provision of Section 57, i.e. “or any
        contract to this effect” is struck down.
 (12)   Section 59 has validated all actions taken by the Central
        Government under the notifications dated 28.01.2009 and
        12.09.2009 and all actions shall be deemed to have been           D
        taken under the Aadhaar Act.
 (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 uphold the constitutionality of Regulations 3 & 4 of     E
        Aadhaar (Enrolment and Update) Regulations, 2016.
 (14)   Rule 9 as amended by PMLA (Second Amendment) Rules,
        2017 is not unconstitutional and does not violate Articles
        14, 19(1)(g), 21 & 300A of the Constitution and Sections 3,
        7 & 51 of the Aadhaar Act. Further Rule 9 as amended is           F
        not ultra vires to PMLA Act, 2002.
 (15)   Circular dated 23.03.2017 being unconstitutional is set aside.
 (16)   Aadhaar Act has been rightly passed as Money Bill. The
        decision of Speaker certifying the Aadhaar Bill, 2016 as
        Money Bill is not immuned from Judicial Review.                   G
 (17)   Section 139-AA does not breach fundamental Right of
        Privacy as per Privacy Judgment in Puttaswamy case.
 (18)   The Aadhaar Act does not violate the interim orders passed
        in Writ Petition (C) No. 494 of 2012 and other Writ Petitions.
                                                                          H
722                SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A            387. Now, we revert back to the batch of cases, which have come
      up for consideration before us.
             388. We having considered and answered the issues arising in
      this batch of cases, all the Writ Petitions filed under Article 32 deserves
      to be disposed of in accordance with our conclusions as noted above.
B     All Transfer Cases/Transfer Petitions are also deserves to be decided
      accordingly.
             389. Now, we come to the Criminal Appeal arising out of S.L.P.
      (Crl.) No. 2524 of 2014. The above S.L.P. (Crl.) arose out of an order
      passed by Judicial Magistrate First Class dated 22.10.2013 by which
C     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.
D            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
E     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
F     dismissed.
            392. In result, this batch of cases is decided in following manner:-
           (i)       All the Writ Petitions filed under Article 32 as well as
                     Transfer Cases are disposed of as per our conclusions
                     recorded above.
G
           (ii)      Criminal Appeal arising out of S.L.P. (Criminal) No. 2524
                     of 2014 is allowed.
           (iii)     All the contempt applications are closed.
            393. Before we part, we record our deep appreciation for the
      industry, hard work and eloquence shown by learned counsel for the
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              723
                    [ASHOK BHUSHAN, J.]

parties appearing before us, which was amply demonstrated in their                 A
respective arguments. Learned counsel have enlightened us with all
relevant concerned materials available in this country and abroad. The
concern raised by these Public Interest Litigations is a concern shown
for little Indian for whom the Society, Government and Court exists. We
appreciate the concern and passion expressed before us by learned
                                                                                   B
counsel appearing for both the parties as well as those, who were
permitted to intervene in the matter. We close by once more recording
of our appreciation for the cause espoused in these cases.
DR. D. Y. CHANDRACHUD, J.
                                    INDEX                                          C
A        Introduction: technology, governance and freedom
B        The Puttaswamy1 principles
         B.I Origins: privacy as a natural right
         B.2 Privacy as a constitutionally protected right : liberty and dignity   D
         B.3 Contours of privacy
         B.4 Informational privacy
         B.5 Restricting the right to privacy
         B.6 Legitimate state interests                                            E

C        Submissions
           C.I Petitioners’ submissions
           C.2 Respondents’ submissions
                                                                                   F
D        Architecture of Aadhaar: analysis of the legal framework
E        Passage of Aadhaar Act as a Money Bill
         E.I Judicial Review of the Speaker’s Decision
         E.2 Aadhaar Act as a Money Bill
                                                                                   G
F        Biometrics, Privacy and Aadhaar
         F.I Increased use of biometric technology
         F.2 Consent in the collection of biometric data
1
    (2017) 10 SCC 1                                                                H
724          SUPREME COURT REPORTS                       [2018] 8 S.C.R.


A         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
B            2. Extent of information disclosed during authentication &
                sharing of core biometric information
             3. Expansive scope of biometric information
             4. Other concerns regarding the Aadhaar Act: Misconceptions
                regarding the efficacy of biometric information
C
             5. No access to biometric records in database
             6. Biometric locking
             7. Key takeaways
      G   Legitimate state aim
D
          G.I Directive Principles
          G.2 Development and freedom
          G.3 Identity and Identification
      H   Proportionality
E
          H.I Harmonising conflicting rights
          H.2 Proportionality standard in Indian jurisprudence
          H.3 Comparative jurisprudence
F         H.4 Aadhaar: The proportionality analysis
          H.5 Dignity and financial exclusion
          H.6 Constitutional validity of Section 139AA of the Income
              Tax Act 1961
          H.7 Linking of SIM cards and Aadhaar numbers
G
      I   Money laundering rules
      J   Savings in Section 59
      K   Rule of law and violation of interim orders

H     L   Conclusion
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             725
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

A Introduction: technology, governance and freedom                             A
       1. Technology and biometrics are recent entrants to litigation.
Individually, each presents specific claims: of technology as the great
enabler; and of biometrics as the unique identifier. As recombinant
elements, they create as it were, new genetic material. Combined
together, they present unforeseen challenges for governance in a digital       B
age. Part of the reason for these challenges is that our law evolved in a
radically different age and time. The law evolved instruments of
governance in incremental stages. They were suited to the social, political
and economic context of the time. The forms of expression which the
law codified were developed when paper was ubiquitous. The limits of
paper allowed for a certain freedom: the freedom of individuality and          C
the liberty of being obscure. Governance with paper could lapse into
governance on paper. Technology has become a universal language which
straddles culture and language. It confronts institutions of governance
with new problems. Many of them have no ready answers.
       2. Technology questions the assumptions which underlie our              D
processes of reasoning. It reshapes the dialogue between citizens and
the state. Above all, it tests the limits of the doctrines which democracies
have evolved as a shield which preserves the sanctity of the individual.
       3. In understanding the interface between governance,
technology and freedom, this case will set the course for the future. Our      E
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          F
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:            G
       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        H
726             SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A             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 democracy and reform,
              the nation would not hold together. With these three strands, the
              framers had spun a seamless web. Undue strain on, or slackness
              in any one strand would distort the web and risk its destruction
B
              and, with it, the destruction of the nation. Maintaining harmony
              between the strands predictably would present those who later
              work the Constitution with great difficulties…”2
      These three strands are much like the polycentric web of which Lon
      Fuller has spoken.3 A pull on one strand shakes the balance between the
C     others. The equilibrium between them preserves the equilibrium of the
      Constitution.
             5. This Court has been tasked with adjudicating on the
      constitutional validity of the Aadhaar project. The difficulties that Granville
      Austin had predicted would arise in harmonising the strands of the
D     “seamless web” are manifested in the present case. This case speaks to
      the need to harmonise the commitment to social welfare while
      safeguarding the fundamental values of a liberal constitutional democracy.
             6. To usher in a social revolution, India espoused the framework
      of a welfare state. The Directive Principles are its allies. The state is
E     mandated to promote the welfare of its citizens by securing and protecting
      as effectively as possible a social order in which there is social, economic
      and political justice. Government plays a vital role in the social and
      economic upliftment of the nation’s citizenry by espousing equitable
      distribution of resources and creating equal opportunities. These are ideals
      that are meant to guide and govern State action. The State’s commitment
F     to improve welfare is manifested through the measures and programmes
      which it pursues.
             7. The Constitution of India incorporated a charter of human
      freedoms in Part III and a vision of transformative governance in Part
      IV. Through its rights jurisprudence, this Court has attempted to safeguard
G     the rights in Part III and to impart enforceability to at least some of the
      Part IV rights by reading them into the former, as intrinsic to a
      constitutionally protected right to dignity. The Directive Principles are a
      2
          Granville Austin, Working a Democratic Constitution: A History of the Indian
          Experience, Oxford University Press (2003) at page 6
      3
          Lon L. Fuller and Kenneth I. Winston, The Forms and Limits of Adjudication,
H         Harvard Law Review, Vol. 92, (1978), at pages 353-409
    JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               727
               [DR.[ASHOK   BHUSHAN, J.] J.]
                    D. Y. CHANDRACHUD,

reminder of the positive duties which the state has to its citizens. While        A
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
                                                                                  B
other freedoms.
       8. Two recent books have explored the complexities of human
identity. In “The Lies That Bind: Rethinking Identity”4, 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                C
Fukuyama, on the other hand has a distinct nuance about identity. In
“Identity: The Demand for Dignity and the Politics of Enlightenment5,
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             D
to be inclusive but small enough to give people a real sense of agency
over their society.”6. Appiah and Fukuyama present two variants – for
Appiah it has a cosmopolitan and global nature while it is more integrated
with a nation state, for Fukuyama, though firmly rooted in a liberal
constitutional order.
                                                                                  E
       9. India has participated in and benefited from the reconfiguring
of technology by the global community. We live in an age of information
and are witness to a technological revolution that pervades almost every
aspect of our lives. Redundancies and obsolescence are as ubiquitous
as technology itself. Technology is a great enabler. Technology can be
harnessed by the State in furthering access to justice and fostering good         F
governance.
      10. In an age symbolised by an information revolution, society is
witnessing a shift to a knowledge economy7. In a knowledge economy,
4
  Kwame Anthony Appiah, The Lies That Bind: Rethinking Identity, Liveright        G
  Publishing (2018).
5
  Francis Fukuyama, Identity: The Demand for Dignity and the Politics of
  Enlightenment, Farrar, Straus and Giroux (2018).
6
  Anand Giridharadas, ‘What is Identity?’, The New York Times, 27 August, 2018.
7
  Peter F Drucker, The Age of Discontinuity: Guidelines to Our Changing
  Society,Harper & Row (1969). Drucker’s book popularized the term ‘Knowledge
  Economy’.                                                                       H
728              SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     growth is dependent on the ‘quantity, quality, and accessibility’8 of
      information. The quest for digital India must nonetheless be cognisant of
      the digital divide. Access confronts serious impediments. Large swathes
      of the population have little or no access to the internet or to the resources
      required for access to information. With the growth of the knowledge
      economy, our constitutional jurisprudence has expanded privacy rights.
B
      A digital nation must not submerge the identities of a digitised citizen.
      While data is the new oil, it still eludes the life of the average citizen. If
      access to welfare entitlements is tagged to unique data sets, skewed
      access to informational resources should not lead to perpetuating the
      pre-existing inequalities of access to public resources. An identification
C     project that involves the collection of the biometric and demographic
      information of 1.3 billion people9, creating the largest biometric identity
      project in the world, must be scrutinized carefully to assess its compliance
      with human rights.
             11. Empowered by the technology that accompanied the advent
D     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
E     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
F     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 defence from the government,
      which has argued that the programme is indispensable to curb corruption,
      fraud and black money.
G
      8
          ‘What is Knowledge Economy?’, IGI Global: Disseminator of Knowledge,
          available at:
          https://www.igi-global.com/dictionary/indigenous-knowledges-and-knowledge-
          codification-in-the-knowledge-economy/16327
      9
          Krishnadas Rajagopal, ‘Aadhaar in numbers: key figures from UIDAI CEO’s
          presentation to the Supreme Court’, The Hindu, (March 22, 2018). Aadhaar
H         enrollment as of March 2018 stood at over 1 billion.
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                 729
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

       12. The Aadhaar project raises two crucial questions: First, are            A
there competing interests between human rights and ‘welfare furthering
technology’ in democratic societies? Can technologies which are held
out to bring opportunities for growth, also violate fundamental human
freedoms? Second, if the answer to the first is in the affirmative, how
should the balance be struck between these competing interests?
                                                                                   B
        13. Efficiency is a significant facet of institutional governance.
But efficiencies can compromise dignity. When efficiency becomes a
universal mantra to steam-roll fundamental freedoms, there is a danger
of a society crossing the line which divides democracy from authoritarian
cultures. At the heart of the grounds on which the Aadhaar project has
been challenged, lies the issue of power. Our Constitution is a                    C
transformative document in many ways. One of them is in defining and
limiting the State’s powers, while expanding the ambit of individual rights
and liberties. It protects citizens from totalitarian excesses and establishes
order between the organs of the State, between the State and citizens
and between citizens. Most importantly, it reaffirms the position of the           D
individual as the core defining element of the polity. That is the justification
to restrain power by empowering all citizens to be authors of their destiny.
According to the Petitioners, the technological potential as well as the
actual implementation of the Aadhaar project alters the balance between
the state and its citizens in this relational sphere and has the potential to
permanently redistribute power within the constitutional framework.                E

       14. As far as citizen-state relations are concerned, the Constitution
was framed to balance the rights of the individual against legitimate
State interests. Being transformative, it has to be interpreted to meet the
needs of a changing society. As the interpreter of the Constitution, it is
the duty of this Court to be vigilant against State action that threatens to       F
upset the fine balance between the power of the state and rights of
citizens and to safeguard the liberties that inhere in our citizens.
       15. The present case involves issues that travel to the heart of
our constitutional structure as a democracy governed by the rule of law.
Among them is the scope of this Court’s power of judicial review. The              G
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
                                                                                   H
730             SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A     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:
B             “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,
C             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 large. Accountability is the medium through which we
              can strike and maintain a balance between the governors and
              the governed.”10
D
      These are some of the unique challenges of this case. They must be
      analysed in the context of our constitutional framework. The all-
      encompassing nature of the Aadhaar project, its magnitude and the
      resultant impact on citizens’ fundamental rights, make it imperative to
      closely scrutinize the structure and effect of the project. For this will
E     determine the future of freedom.
      B The Puttaswamy11 principles
             17. A unanimous verdict by a nine judge Bench declared privacy
      to be constitutionally protected, as a facet of liberty, dignity and individual
F     autonomy. In a voluminous judgment, the Court traced the origins of
      privacy and its content. The decision lays down the test of proportionality
      to evaluate the constitutional validity of restrictions on the right to privacy.
             18. The protection of privacy emerges both from its status as a
      natural right inhering in every individual as well as its position as “a
      constitutionally protected right”. As a constitutional protection, privacy
G
      traces itself to the guarantee of life and personal liberty in Article 21 of
      the Constitution as well as to other facets of freedom and dignity
      recognized and guaranteed by the fundamental rights contained in Part III.
      10
         Upendra Baxi, The Right To Be Human: Some Heresies, India International Centre
          Quarterly, Vol. 13, (1986).
H     11
         Justice K S Puttaswamy (Retd) v Union of India (“Puttaswamy”), (2017) 10 SCC 1
     JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                731
                [DR.[ASHOK   BHUSHAN, J.] J.]
                     D. Y. CHANDRACHUD,

B.I     Origins: privacy as a natural right                                         A
       19. Puttaswamy holds that the right to privacy inheres in every
individual as a natural right. It is inalienable and attaches to every individual
as a pre-condition for being able to exercise their freedom. The judgment
of four judges (with which Justice Sanjay Kishan Kaul concurred) held:
          “42. Privacy is a concomitant of the right of the individual to           B
          exercise control over his or her personality. It finds an origin
          in the notion that there are certain rights which are natural
          to or inherent in a human being. Natural rights are inalienable
          because they are inseparable from the human personality.”12
          (Emphasis supplied)                                                       C
          “319. Life and personal liberty are not creations of the
          Constitution. These rights are recognised by the
          Constitution as inhering in each individual as an intrinsic
          and inseparable part of the human element which dwells
          within.”13 (Emphasis supplied)                                            D
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.”14                     E
          (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            F
          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.”15
                                                                                    G
          (Emphasis supplied)

12
     Ibid, at page 365
13
     Ibid, at page 508
14
     Ibid, at pages 536-537
15
     Ibid, at page 605
                                                                                    H
732               SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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.”16
B               (Emphasis supplied)
      The judgment authoritatively settles the position. While privacy is
      recognized and protected by the Constitution as an intrinsic and
      inseparable part of life, liberty and dignity, it inheres in every individual
      as a natural right.
C
      B.2 Privacy as a constitutionally protected right : liberty and
          dignity
             20. The judgment placed the individual at the centre of the
      constitutional rights regime. The individual lies at the core of constitutional
D     focus. The ideals of justice, liberty, equality and fraternity animate the
      vision of securing a dignified existence to the individual. The Court held
      that privacy attaches to the person and not the place where it is associated.
      Holding that privacy protects the autonomy of the individual and the
      right to make choices, the judgment of four judges held:
                “108….The individual is the focal point of the Constitution
E
                because it is in the realisation of individual rights that the
                collective well being of the community is determined.
                Human dignity is an integral part of the Constitution.17
                “266. Our Constitution places the individual at the forefront
                of its focus, guaranteeing civil and political rights in Part
F
                III and embodying an aspiration for achieving socio-
                economic rights in Part IV.”
                (Emphasis supplied)
      It was held that privacy rests in every individual “irrespective of social
G     class or economic status” and that every person is entitled to the intimacy
      and autonomy that privacy protects:
                “271...It is privacy as an intrinsic and core feature of life and
                personal liberty which enables an individual to stand up against a
      16
           Ibid, at page 614
      17
H          Ibid, at page 403
     JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             733
                [DR.[ASHOK   BHUSHAN, J.] J.]
                     D. Y. CHANDRACHUD,

          programme of forced sterilization. Then again, it is privacy which     A
          is a powerful guarantee if the State were to introduce compulsory
          drug trials of non-consenting men or women. The sanctity of
          marriage, the liberty of procreation, the choice of a family
          life and the dignity of being are matters which concern
          every individual irrespective of social strata or economic
                                                                                 B
          well being. The pursuit of happiness is founded upon
          autonomy and dignity. Both are essential attributes of
          privacy which makes no distinction between the birth
          marks of individuals.”18 (Emphasis supplied)
       21. Recognizing that civil-political rights are not subservient to
socio-economic rights, the Court held that “conditions necessary for             C
realizing or fulfilling socio-economic rights do not postulate 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     D
          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          E
          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.19
          267... Conditions of freedom and a vibrant assertion of civil and      F
          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.”20                                                          G


18
     Ibid, at page 484
19
     Ibid, at pages 481-482
20
     Ibid, at page 482
                                                                                 H
734               SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     Significantly, the Court rejected the submission that there is a conflict
      between civil-political rights and socio-economic rights. Both in the view
      of the Court are an integral part of the constitutional vision of justice.
              22. Privacy, it was held, reflects the right of the individual to
      exercise control over his or her personality. This makes privacy the heart
B     of human dignity and liberty. Liberty and dignity are complementary
      constitutional entities. Privacy was held to be integral to liberty. Privacy
      facilitates the realization of constitutional freedoms. This Court held thus:
                “119. To live is to live with dignity. The draftsmen of the
                Constitution defined their vision of the society in which
C               constitutional values would be attained by emphasising, among
                other freedoms, liberty and dignity. So fundamental is dignity
                that it permeates the core of the rights guaranteed to the individual
                by Part III. Dignity is the core which unites the fundamental
                rights because the fundamental rights seek to achieve for each
                individual the dignity of existence. Privacy with its attendant values
D               assures dignity to the individual and it is only when life can be
                enjoyed with dignity can liberty be of true substance. Privacy
                ensures the fulfilment of dignity and is a core value which the
                protection of life and liberty is intended to achieve.”21
                127... The right to privacy is an element of human dignity. The
E               sanctity of privacy lies in its functional relationship with dignity.
                Privacy ensures that a human being can lead a life of dignity by
                securing the inner recesses of the human personality from
                unwanted intrusion. Privacy recognises the autonomy of the
                individual and the right of every person to make essential choices
                which affect the course of life. In doing so privacy recognises
F               that living a life of dignity is essential for a human being to fulfil
                the liberties and freedoms which are the cornerstone of the
                Constitution.”22
             23. The assurance of human dignity enhances the quality of life.
      The “functional relationship” between privacy and dignity secures the
G     “inner recesses of the human personality from unwanted intrusion”.
       Privacy by recognizing the autonomy of an individual, protects the right
      to make choices essential to a dignified life. It thus enables the realization
      of constitutional liberties and freedoms. It was held in the judgment:
      21
           Ibid, at pages 406-407
      22
H          Ibid, at page 413
     JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              735
                [DR.[ASHOK   BHUSHAN, J.] J.]
                     D. Y. CHANDRACHUD,

          “322. Privacy is the constitutional core of human dignity. Privacy      A
          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.23
                                                                                  B
          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.”24          C

        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                D
“essential condition” for the exercise of most freedoms. As such, given
that privacy and liberty are intertwined, privacy is necessary for the
exercise of liberty. Bobde J, in his separate opinion held that:
          “409...Liberty and privacy are integrally connected in a way that
          privacy is often the basic condition necessary for exercise of the      E
          right of personal liberty. There are innumerable activities which
          are virtually incapable of being performed at all and in many
          cases with dignity unless an individual is left alone or is otherwise
          empowered to ensure his or her privacy.25
          411... Both dignity and privacy are intimately intertwined and          F
          are natural conditions for the birth and death of individuals, and
          for many significant events in life between these events.
          Necessarily, then, the right of privacy is an integral part of both
          ‘life’ and ‘personal liberty’ under Article 21, and is intended to
          enable the rights bearer to develop her potential to the fullest        G
          extent made possible only in consonance with the constitutional
          values expressed in the Preamble as well as across Part III.”26
23
     Ibid, at page 508
24
     Ibid, at page 499
25
     Ibid, at page 543
26
     Ibid, at page 544                                                            H
736               SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           25. Apart from being a natural law right, the right to privacy was
      held to be a constitutionally protected right flowing from Article 21.
      Privacy is an indispensable 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. Tracing
      out the course of precedent in Indian jurisprudence over the last four
B
      decades, the view of four judges holds:
                “103. The right to privacy has been traced in the decisions which
                have been rendered over more than four decades to the guarantee
                of life and personal liberty in Article 21 and the freedoms set out
                in Article 19.”27
C
                “320. Privacy is a constitutionally protected right which emerges
                primarily from the guarantee of life and personal liberty in Article
                21 of the Constitution…”28
      In a similar vein, Chelameswar J. while concurring with the view of four
D     judges held:
                “375. The right to privacy is certainly one of the core freedoms
                which is to be defended. It is part of liberty within the meaning
                of that expression in Article 21.”29
            26. Being indispensable to dignity and liberty, and essential to the
E     exercise of freedoms aimed at the self-realization 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
F               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
G
                Constitution. It is the inarticulate major premise in Part
                III of the Constitution.30
      27
           Ibid, at page 401
      28
           Ibid, at page 508
      29
           Ibid, at page 531
      30
H          Ibid, at pages 541-542
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             737
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

            415. Privacy is the necessary condition precedent to the              A
            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),
                                                                                  B
            25, 28 and 29 are all rights helped up and made meaningful by
            the exercise of privacy.”
            (Emphasis supplied)
B.3 Contours of privacy
        27. Privacy has been held to have distinct connotations including         C
(i) spatial control; (ii) decisional autonomy; and (iii) informational control.
The judgment of four judges held that:
            “248. Spatial control denotes the creation of private spaces.
            Decisional autonomy comprehends intimate personal choices
            such as those governing reproduction as well as choices               D
            expressed in public such as faith or modes of dress. Informational
            control empowers the individual to use privacy as a shield to
            retain personal control over information pertaining to the person.”
Similarly, Nariman J. in his separate opinion held:
                                                                                  E
            “521. In the Indian context, a fundamental right to privacy would
            cover at least the following three aspects:
            •     Privacy that involves the person i.e. when there is some
                  invasion by the State of a person’s rights relatable to his
                  physical body, such as the right to move freely;
                                                                                  F
            •     Informational privacy which does not deal with a person’s
                  body but deals with a person’s mind, and therefore
                  recognizes that an individual may have control over the
                  dissemination of material that is personal to him.
                  Unauthorised use of such information may, therefore lead
                                                                                  G
                  to infringement of this right; and
            •     The privacy of choice, which protects an individual’s
                  autonomy over fundamental personal choices.”31
31
     Ibid, at page 598
                                                                                  H
738                SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A            28. However, it was held that this is not an exhaustive formulation
      of entitlements. In recording its conclusions, the opinion of four judges
      held:
                 “324. This Court has not embarked upon an exhaustive
                 enumeration or a catalogue of entitlements or interests
B                comprised in the right to privacy. The Constitution must
                 evolve with the felt necessities of time to meet the
                 challenges thrown up in a democratic order governed by
                 the rule of law. The meaning of the Constitution cannot be frozen
                 on the perspectives present when it was adopted. Technological
                 change has given rise to concerns which were not present seven
C                decades ago and the rapid growth of technology may render
                 obsolescent many notions of the present. Hence the
                 interpretation of the Constitution must be resilient and
                 flexible to allow future generations to adapt its content
                 bearing in mind its basic or essential features.”32 (Emphasis
D                supplied)
      Additionally, Bobde J., in his separate opinion 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
E                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
F                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.” 3 3
                 (Emphasis supplied)
G
      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
      32
           Ibid, at page 509
H     33
           Ibid, at page 545
     JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             739
                [DR.[ASHOK   BHUSHAN, J.] J.]
                     D. Y. CHANDRACHUD,

free, personal conception of the ‘self.’ Justice Nariman held that               A
informational privacy “deals with a person’s mind, and therefore
recognizes that an individual may have control over the dissemination of
material that is personal to him”. Any unauthorised use of such information
may therefore lead to infringement of the right to privacy. In his concurring
judgment, Justice Kaul held that informational privacy provides the right
                                                                                 B
to an individual “to disseminate certain personal information for limited
purposes alone”. Kaul J. in his separate opinion held:
          “620…The boundaries that people establish from others
          insociety are not only physical but also informational. There
          are different kinds of boundaries in respect to different relations.
          Privacy assists in preventing awkward social situations and            C
          reducing social frictions. Most of the information about individuals
          can fall under the phrase “none of your business”. …
          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             D
          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.” 34 (Emphasis                  E
          supplied)
       30. A reasonable expectation of privacy requires that data
collection does not violate the autonomy of an individual. The judgment
of four judges noted the centrality of consent in a data protection regime.
This was also highlighted in the separate concurring opinion of Justice          F
Kaul:
          “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       G
          his image, name and other aspects of his/her personal life and
          identity for commercial purposes without his/her consent.”35

34
     Ibid, at page 627
35
     Ibid, at page 629
                                                                                 H
740                SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     Consent, transparency and control over information are crucial to
      informational privacy. In this structure, Court has principally focused on
      the “individual” as central to our jurisprudence.
      B.5 Restricting the right to privacy
             31. There is an inherent importance of giving a constitutional status
B     to privacy. Justice Nariman dealt with this:
                 “490...The recognition of such right in the fundamental rights
                 chapter of the Constitution is only a recognition that such right
                 exists notwithstanding the shifting sands of majority governments.
                 Statutes may protect fundamental rights; they may also infringe
C                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
D                public interest, it would be the duty of this Court to declare such
                 legislation to be void as offending the fundamental right to
                 privacy.”36
      A constitutional right may embody positive and negative ‘aspects’. They
      signify mandates. At an affirmative level, they emphasise the content
E     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 obligation to perform. Rights such as informational
F     privacy and data protection mandate that the state must bring into being
      a viable legal regime which recognizes, respects, protects and enforces
      informational privacy. Informational privacy requires the state to protect
      it by adopting positive steps to safeguard its cluster of entitlements. The
      right to informational privacy is not only vertical (asserted and protected
G     against state actors) but horizontal as well. Informational privacy requires
      legal protection because the individual cannot be left to an unregulated
      market place. Access to and exploitation of individual personal data –
      whether by state or non-state entities – must be governed by a legal
      36
           Ibid, at pages 580-581
H
     JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               741
                [DR.[ASHOK   BHUSHAN, J.] J.]
                     D. Y. CHANDRACHUD,

regime built around the principles of consent, transparency and individual         A
control over data at all times.
       32. Privacy, being an intrinsic component of the right to life and
personal liberty, it was held that the limitations which operate on those
rights, under Article 21, would operate on the right to privacy. Any
restriction on the right to privacy would therefore be subjected to strict         B
constitutional scrutiny. The constitutional requirements for testing the
validity of any encroachment on privacy were dealt with in the judgment
as follows:
         “325… In the context of Article 21 an invasion of privacy must
         be justified on the basis of a law which stipulates a procedure           C
         which is fair, just and reasonable. The law must also 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       D
         between the objects and the means adopted to achieve them.”37
These three-fold requirements emerge from the procedural and content-
based mandate of Article 21. The first requirement is the enactment of
a valid law, which justifies an encroachment on privacy. The second
requirement of a legitimate State aim ensures that the law enacted to              E
restrict privacy is constitutionally reasonable and does not suffer from
manifest arbitrariness. The third requirement of proportionality ensures
that the nature and quality of the encroachment on the right to privacy is
not disproportionate to the purpose of the law. 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                F
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
                                                                                   G
           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
37
     Ibid, at page 509                                                             H
742               SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A             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
B
              safeguards to protect this right – viz. the fact that such information
              cannot be disseminated to anyone else, save on compelling
              grounds of public interest.”38
             33. While five judges of the Court adopted the “proportionality”
      standard to test a law infringing privacy, Justice Chelameswar discussed
C     the need to apply of a “compelling state interest” standard, describing it
      as the “highest standard of scrutiny that a court can adopt”. Describing
      Article 21 as the “bedrock” of privacy, the learned Judge held:
              “379…If the spirit of liberty permeates every claim of privacy, it
              is difficult if not impossible to imagine that any standard of
D             limitation, other than the one under Article 21 applies.39
              380. The just, fair and reasonable standard of review under Article
              21 needs no elaboration. It has also most commonly been used
              in cases dealing with a privacy claim hitherto. Gobind resorted
              to the compelling state interest standard in addition to the Article
E             21 reasonableness enquiry. From the United States where the
              terminology of ‘compelling state interest’ originated, a strict
              standard of scrutiny comprises two things- a ‘compelling state
              interest’ and a requirement of ‘narrow tailoring’ (narrow tailoring
              means that the law must be narrowly framed to achieve the
              objective). As a term, compelling state interest does not have
F             definite contours in the US. Hence, it is critical that this standard
              be adopted with some clarity as to when and in what types of
              privacy claims it is to be used. Only in privacy claims which
              deserve the strictest scrutiny is the standard of compelling
              State interest to be used. As for others, the just, fair and
              reasonable standard under Article 21 will apply. When the
G
              compelling State interest standard is to be employed must
              depend upon the context of concrete cases.”40 (Emphasis
              supplied)
      38
           Ibid, at page 583
      39
           Ibid, at page 532
H     40
           Ibid, at pages 532-533
     JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               743
                [DR.[ASHOK   BHUSHAN, J.] J.]
                     D. Y. CHANDRACHUD,

Justice Chelameswar’s view accepts the ‘fair, just and reasonable’                 A
standard in the generality of cases, carving an exception in cases of a
certain category where a heightened scrutiny must apply. Those
categories of exception are not spelt out. They would, as the judge opined,
be evolved on a case by case basis.
       34. The Bench of nine judges had held that the contours of privacy          B
exist across the spectrum of constitutionally protected freedoms. Privacy
was held to be a necessary condition precedent to the enjoyment of the
guarantees in Part III. This has enhanced the scope of 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:                             C

           “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           D
           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.”41
                                                         (Emphasis supplied)
                                                                                   E
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        F
           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 balancing test prescribed under the
           fundamental right that it infringes depending upon where
           the privacy interest claimed is founded.”42
                                                                                   G
                                                         (Emphasis supplied)


41
     Ibid, at page 549
42
     Ibid, at page 580

                                                                                   H
744               SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     Justice Nariman further held:
                “526…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,
B               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 legislation
C               or executive action, under Article 21 read with Article 14; or
                Article 21 read with Article 19(1) (a) in the aforesaid examples
                must be met in order that State action must pass muster.”43
                (Emphasis supplied)
      The constitutional guarantee on protection of privacy was placed on a
D     sure foundation. Since emanations of privacy are traceable to various
      rights guaranteed by Part III, a law or executive action which encroaches
      on privacy must meet the requirements of the constitutionally permissible
      restriction in relation to each of the fundamental rights where the claim
      is founded.
E     B.6 Legitimate state interests
             35. Recognizing that the right to privacy is not absolute, the
      judgment recognizes that legitimate state interests may be a valid ground
      for the curtailment of the right subject to the tests laid down for the
      protection of rights. Justice Nariman held:
F
                “526...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.”44
G
      Recognizing that a legitimate state aim is a pre-requisite for any restriction
      on the right, the judgment of four judges held:

      43
           Ibid, at page 601
      44
           Ibid, at page 601
H
     JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              745
                [DR.[ASHOK   BHUSHAN, J.] J.]
                     D. Y. CHANDRACHUD,

          “310…the requirement of a need, in terms of a legitimate state          A
          aim, ensures that the nature and content of the law which imposes
          the restriction falls within the zone of reasonableness mandated
          by Article 14, which is a guarantee against arbitrary state action.
          The pursuit of a legitimate state aim ensures that the law does
          not suffer from manifest arbitrariness.”
                                                                                  B
         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         C
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               D
          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.”45
Prevention and investigation of crime, protection of the revenue and
public health were demarcated as being part of other legitimate aims of           E
the State. The judgment places an obligation on the State to ensure that
while its legitimate interests are duly preserved the data which the State
collects is used only for the legitimate purposes of the State and is “not
to be utilised unauthorizedly for extraneous purposes.”
         37. However, reiterating that every facet of privacy is to be
protected, the judgment held that there should be a careful balance               F
between individual interests and legitimate concerns of the state. Justice
Nariman, in his separate opinion held:
          “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   G
          be subjected to the balancing test prescribed under the
          fundamental right that it infringes depending upon where the
          privacy interest claimed is founded.”46
45
     Ibid, at page 505
46
     Ibid, at page 580
                                                                                  H
746                 SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A            38. The judgment in Puttaswamy recognizes the right to privacy
      as a constitutional guarantee protected as intrinsic to the freedoms
      guaranteed by Part III of the Constitution. Privacy is integral to the
      realization of human dignity and liberty. A society which protects privacy,
      values the worth of individual self-realization. For it is in the abyss of
      solitude that the innermost recesses of the mind find solace to explore
B
      within and beyond.
      C         Submissions
      C.I        Petitioners’ submissions
      The petitioners challenge the constitutional validity of:
C
          a.      The Aadhaar programme that operated between 28.01.2009 till
                  the coming into force of the Aadhaar Act, 2016 on 12.07.2016;
          b.      The Aadhaar Act, 2016 (and alternativelycertain provisions of
                  the Act);
D         c.      Regulations framed under the Aadhaar Act, 2016;
          d.      Elements of the Aadhaar programme that continue to operate
                  without the cover of the Act;
          e.      Subordinate legislation including the Money Laundering
                  (Amendment) Rules, 2017;
E
          f.      All notifications issued under Section 7 of the Aadhaar Act in so
                  far as they make Aadhaar mandatory for availing of certain
                  benefits, services and subsidies; and
          g.      Actions which made Aadhaar mandatory even where the activity
F                 is not covered by Section 7 of the Act.
      Mr Shyam Divan, learned Senior Counsel submitted that the Aadhaar
      project and Act are ultra vires on the following grounds:
          i       The project and the Act violate the fundamental right to privacy;
          ii      The architecture of the Aadhaar project enables pervasive
G
                  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;
H
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             747
             [DR.[ASHOK   BHUSHAN, J.] J.]
                  D. Y. CHANDRACHUD,

  iv    Due to the unreliability of biometric technology, there are           A
        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     B
        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:      C
        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                                              D
        c.   The data collected and uploaded into the CIDR is not verified
             by any government official designated by UIDAI.
Mr Kapil Sibal, learned Senior Counsel submits that the provisions of
the Aadhaar Act are unconstitutional for the following reasons:
                                                                              E
  i     The aggregation and concentration of sensitive personal
        information under the Aadhaar Act is impermissible because it is
        capable of being used to affect every aspect of an individual’s
        personal, professional, religious and social life. It is therefore
        violative of the individual freedoms guaranteed under Articles
                                                                              F
        19(1)(a) to 19(1)(g), 21 and 25 of the Constitution;
  ii    Such aggregation of information is also an infringement of
        informational privacy, which has been recognised in Puttaswamy;
  iii   Making Aadhaar mandatory unreasonably deprives citizens of
        basic rights and entitlements and infringes Article 21 of the         G
        Constitution;
  iv    Use of Aadhaar as an exclusive identity for availing of subsidies,
        benefits and services is disproportionate and violates Article 14
        for being arbitrary and discriminatory against persons otherwise
        entitled to such benefits;                                            H
748               SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A          v     Collection and storage of data with the government under the
                 Aadhaar Act is violative of the right to protection from self-
                 incrimination, and the right to privacy and personal dignity and
                 bodily Integrity envisaged under Article 20(3) and Article 21 of
                 the Constitution;
B          vi    To prescribe that Aadhaar is the only identity that enables a
                 person to receive entitlements is contrary to the right of an
                 individual under the Constitution to identify the person through
                 other prescribed documentation such as electoral rolls or
                 passports;
C          vii   Section 7 of the Aadhaar Act is applicable only to such subsidies,
                 benefits and services, for which the entire expenditure is directly
                 incurred from the Consolidated Fund of India or from which the
                 entire receipts directly form part of the Consolidated Fund of
                 India;
D          viii Use of Aadhaar as the sole identity will not prevent pilferage
                and diversion of funds and subsidies, as faulty identification is
                only one of the factors that contributes to it; and
           ix    The Aadhaar project conditions the grant of essential benefits
                 upon the surrender of individual rights.
E     Mr Gopal Subramanium, learned Senior Counsel, made the following
      submissions:
           i     The Aadhaar project violates dignity under Article 21 of the
                 Constitution as recognised in the judgments- in Puttaswamy,
                 NALSA47 and Subramanian Swamy48;
F
           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;
G          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;
      47
           (2014) 5 SCC 438
      48
H          (2016) 7 SCC 221
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                749
              [DR.[ASHOK   BHUSHAN, J.] J.]
                    D. Y. CHANDRACHUD,

  vi    Rights and entitlements conferred under the Constitution cannot          A
        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          B
       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                  C
        requires mandatory linking of Aadhaar with bank accounts is
        unconstitutional and violates Articles 14, 19(1)(g), 21 and 300A
        of the Constitution, Sections 3, 7 and 51 of the Aadhaar Act, and
        is also ultra vires of the provisions of the PMLA Act, 2002 on
        the following grounds:                                                   D
        a.    Under the impugned amended Rules, linkage of Aadhaar
              numbers to bank accounts is mandatory and persons not
              enrolling for Aadhaar cannot operate a bank account,
              which violates the spirit of Article 14 in entirety in so far it
              arbitrarily metes out unequal treatment based on
                                                                                 E
              unreasonable classification;
        b     The impugned Rules are violative of Article 19(1)(g) as the
              Rules refer to companies, firms, trusts, etc., whereas the
              Aadhaar Act is only to establish identity of “individuals”;
        c     Non-operation of a bank account, even for a temporary              F
              period, leads to deprivation of an individual’s property and
              therefore constitutes a violation under Article 300A of the
              Constitution, which provides that deprivation can be done
              only by primary legislation; and
         d    The Rule has no nexus to the object of the PMLA Act, as            G
              the Act has no provision to make bank accounts non-
              operational;
  ii    Section 139AA of the Income Tax Act, 1961 is liable to be struck
         down as violative of Articles 14, 21 and 19(g) of the Constitution;
                                                                                 H
750               SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A          iii   The decision in Binoy Viswam v Union of India49requires re-
                 consideration in view of the nine judge Bench decision
                 in Puttaswamy;
           iv    In view of serious deficiencies in the Aadhaar Act, there is a
                 need for guidelines under Article 142 to protect inter alia, the
B                right to privacy and to implement the mandate of the nine judge
                 Bench in Puttaswamy;
           v     If the Aadhaar project is not struck down, it should be confined
                 only for identification or authentication of persons who are entitled
                 to subsidies, benefits and services for which expenditure is
C                incurred from the Consolidated Fund of India;
           vi    Sections 2(g), 2(j) 7, 57 and 59 of the Aadhaar Act violate Articles
                 14, 21 and 300A of the Constitution; and
           vii   PMLA Rule 9 is arbitrary as it is contrary to the RBI Master
                 Circular (issued in 2013), which provided a list of documents
D                that were to be treated as ‘identity proof’, in relation to proof of
                 name and proof of residence.
      Mr P Chidambaram, learned Senior Counsel argued that the Aadhaar
      Act could not have been passed as a Money Bill. Thus, he submitted:
           i     The only difference between financial bills and money bills is the
E
                 term “only” in Article 110 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
F
                 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
G                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
      49
           (2017) 7 SCC 59
H
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              751
             [DR.[ASHOK   BHUSHAN, J.] J.]
                  D. Y. CHANDRACHUD,

        final, the finality is only with regard to the Parliament and does     A
        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        B
        as a whole by the Court.
Mr KV Vishwanathan, learned Senior Counsel made the following
submissions:
  i     All acts done prior to the passage of the Act are void ab initio
        and are not saved or validated by Section 59. In any event,            C
        Section 59 is invalid;
  ii    Collection, storage and use of data under the Aadhaar project
        and Act are invalid for the following reasons:
        a.   The Aadhaar Act and the surrounding infrastructure has            D
             made the possession of Aadhaar de facto mandatory;
        b.   Compulsory collection of identity information violates various
             facets of the right to privacy - bodily privacy, informational
             privacy and decisional autonomy;
        c.   The Act is unconstitutional since it collects the identity        E
             information of children between 5-18 years without parental
             consent;
        d.   Centralised storage of identity information and the unduly
             long period of retention of transaction data and authentication
             records is disproportionate;                                      F
        e.   The Act and Regulations preclude Aadhaar number holders
             from accessing or correcting their identity information stored
             on the CIDR; and
        f.   The Act and Regulations lack safeguards to secure sensitive
             personal data.                                                    G

  iii   Services like health related services, and those related to food,
        pensions and daily wages claimed under Section 7 of the Act
        have been denied because of biometric failure. Biometric
        infrastructure operates on a probabilistic system, which cannot
                                                                               H
752            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A             be ‘one hundred percent infallible’. Thus, the State needs to take
              steps to prevent the denial of benefits by adopting alternate
              methods for verification of identity. This is absent at present,
              resulting in a violation of Articles 14 & 21;
        iv    No provision is made for a hearing against omission and
B             deactivation of the Aadhaar number, which violates the principles
              of natural justice; and
        v     Sections 2(g), 2(j), 2(k) and 23(2) of the Aadhaar Act suffer
              from excessive delegation and the allied regulations are vague,
              manifestly arbitrary and unreasonable.
C     Mr Anand Grover, learned Senior Counsel has submitted thus:
        i     The Aadhaar project extends far beyond the scope of the Aadhaar
              Act with no procedural safeguards. Hence it violates Article 21
              in as much as it is without the support and sanction of law. The
              data collected is unauthorised, excessive and being illegally
D             shared;
        ii    The use of biometric technology to establish identity is uncertain,
              unproven and unreliable leading to exclusion and a violation of
              Articles 14 and 21;
        iii   The lack of security in the Aadhaar project violates the right to
E
              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
F             constitutionally invalid.
      Ms Meenakshi Arora, learned Senior Counselcontended that:
        i     The general and indiscriminate retention of personal data, including
              meta-data, and the ensuing possibility of surveillance by the State
              has a chilling effect on fundamental rights like the freedom of
G             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

H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                 753
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

  iii   The Aadhaar project does not contain any specific provisions               A
        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                 B
submissions:
  i     The Aadhaar Act fails to satisfy the constitutional test of a just,
        fair and reasonable law;
  ii    Maintenance of Aadhaar records by the State under Section 32
        is an unwarranted intrusion by the State;                                  C

  iii   Use of personal information under Section 33 is an unwarranted
        intrusion by the State;
  iv    Section 57 of the Act is contrary to the principle of purpose
        limitation; and                                                            D
  v     Sections 2(g) and 2(j), the proviso to Section 3(1), Section 23(2)(g)
        and Section 23(2)(n) read with Section 54(2)(l), and Section 29(4)
        of the Act suffer from the vice of excessive delegation.
Mr CU Singh, learned Senior Counsel, argued that the rights of the
child are violated through the Aadhaar project. A child has no right to            E
give consent or to enter into a contract. A child in India, under law, has
no power or right to bind herself to anything, to consent or enter into
contracts. In this background, there is no compelling state interest to
mandate Aadhaar for children. The fundamental right of a child to
education cannot be made subject to production of Aadhaar. These
                                                                                   F
requirements are not only contrary to domestic legislation protecting the
rights of children but also against India’s international obligations. Learned
counsel also spoke of the violation of the rights of homeless people who
are denied benefits due to the lack of a fixed abode.
Mr Sanjay Hegde, learned Senior Counsel has urged that since there
is no ‘essential practice’ involved, exemptions must be allowed from the           G
mandatory nature of the Aadhaar Act on the grounds of freedom of
conscience under Article 25 of the Constitution.
Ms Jayna Kothari, learned Counsel arguing on behalf of an intervenor
organization for transgender persons and sexual minorities urged that
                                                                                   H
754             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     the Aadhaar Act discriminates against sexual minorities. Aadhaar
      Regulations require demographic information. The enrolment form has
      a third gender, but there is no uniformity across the board, and the
      documents that have to be produced to get an Aadhaar card do not
      always have that option. Aadhaar is being made mandatory for almost
      everything but transgender persons cannot get an Aadhaar because they
B
      do not have the gender identity documents that Aadhaar requires. This
      non-recognition of gender identity leads to denial of benefits which is
      violative of both Articles 14 and 21.
      It has also been argued before us in an intervention application that
      denial of Aadhaar to Non-Resident Indians leads to discrimination when
C     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:
D       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
E              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.
F
               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;
G       iv.    Subsequent to the Aadhaar Act, the petitioners would have to
               establish that one or more of the tests laid down by the nine
               judge bench in Puttaswamy render the invasion of privacy
               resulting from the Aadhaar Act unconstitutional. The tests laid
               down in Puttaswamy have been satisfied and hence the Aadhaar
H              Act is not unconstitutional for the following reasons:
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            755
             [DR.[ASHOK   BHUSHAN, J.] J.]
                  D. Y. CHANDRACHUD,

       a.    The first condition in regard to the existence of a law has     A
             been satisfied;
       b. Legitimate state interests such as preventing the dissipation
             of social welfare benefits, prevention of money laundering,
             black money and tax evasion, and protection of national
             security are satisfied through the Act;                         B
       c. The Aadhaar Act satisfies the test of proportionality by
             ensuring that a “rational nexus” exists between the objects
             of the Act and the means adopted to achieve its objects;
             and
       d. For the purpose of testing legitimate State interest and           C
             proportionality, the Court must take note of the fact that
             each one of the subsidies and benefits under Section 7 is
             traceable to rights under Article 21 of the Constitution -
             such as the right to live with human dignity, the right to
             food, right to shelter, right to employment, right to medical
             care and education. If these rights are juxtaposed with the     D
             right to privacy, the former will prevail over the latter.
  v.   The Aadhaar Act was validly passed as a Money Bill on the
       following grounds:
  a.   The term ‘targeted delivery of subsidies’ contemplates an
       expenditure of funds from the Consolidated Fund of India, which       E
       brings the Aadhaar Act within the purview of a Money Bill under
       Art. 110 of the Constitution;
  b.   Sections 7, 24, 25 and the Preamble of the Act also support its
       classification as a Money Bill;
  c.   The Aadhaar Act has ancillary provisions, but they are related to     F
       the pith and substance of the legislation which is the targeted
       delivery of subsidies and benefits; and
  d.   Section 57 of the Act is saved by Article 110 (1) (g) of the
       Constitution as it is a standalone provision and even if a Bill is
       not covered under clauses (a) to (f) of Article110(1), it can still   G
       be covered under Article110 (1) (g).
Mr Tushar Mehta, learned Additional Solicitor General, submitted:
  i.   Section 139AA of the Income Tax Act, was examined in Binoy
       Viswam in the context of Article 19 and fulfills the three tests
                                                                             H
756                    SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A                 laid down under Puttaswamy as well as the test of manifest
                  arbitrariness laid down in Shayara Bano v Union of India50;
           ii.    The demographic 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
B                 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
C                        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
D                        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
E
                         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
F
                         measures including the amendments to inter alia the Income
                         Tax Act and the PMLA Act and Rules thereunder, have
                         been brought about by the legislature;
                  f.     Statutory provisions under Aadhaar Act and Income Tax
                         Act are distinct and standalone. Moreover, the validity of
G                        one provision cannot be examined in the light of the other;
                  g.     Ascribing a (mandatory or voluntary) character to the
                         provisions of a statute is Parliament’s prerogative and cannot
                         be questioned by courts; and
      50
H          (2017) 9 SCC 1
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                  757
             [DR.[ASHOK   BHUSHAN, J.] J.]
                  D. Y. CHANDRACHUD,

       h.    Rule 9 of the amended PMLA Rules that mandates                        A
             furnishing of an Aadhaar number to open a bank account is
             not ultra vires the Aadhaar Act. Similarly, the Rule that an
             existing bank account will become non-operational if not
             linked with Aadhaar within six months is not a penalty but a
             consequence to render the accounts of money launderers
                                                                                   B
             non-operational.
Mr Rakesh Dwivedi, learned Senior Counsel, has submitted:
  i.   The right to privacy exists when there is a reasonable expectation
       of privacy. However, this reasonable expectation of privacy
       differs from one dataset to another since the Aadhaar Act draws             C
       a distinction between demographic information, optional
       demographic information (eg. mobile number), core biometric
       information (fingerprints and iris scans) and biometric information
       such as photographs;
  ii. Alternatively, the applicability of Article 21 has to be confined
                                                                                   D
       and limited to core biometric information;
  iii. Fundamental rights are not absolute and can be restricted if
       permitted specifically. Article 21 expressly envisages deprivation
       by laws which seek to carry out legitimate objectives and are
       reasonable and proportionate;
  iv. The Aadhaar Act does not cause exclusion because if                          E
       authentication fails after multiple attempts, then the subsidies,
       benefits and services, can be availed of by proving the possession
       of an Aadhaar number, either by producing the Aadhaar card or
       by producing the receipt of the application for enrolment and
       producing the enrolment ID number;                                          F
  v. Section 7 of the Aadhaar Act protects the right to human dignity
       recognized by Article 21 of the Constitution by providing services,
       benefits and subsidies. The Aadhaar Act is a welfare scheme in
       pursuance of the State’s obligation to respect the fundamental
       rights to life and personal liberty; to ensure justice (social, political
                                                                                   G
       and economic) and to eliminate inequality (Article 14) with a
       view to ameliorate 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;
                                                                                   H
758          SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     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
B
            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
C           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 balance.
D           The Aadhaar Act ensures human dignity and the right to life and
            liberty, hence there would be no reasonable expectation of privacy
            and autonomy;
      x. The requirement to obtain an Aadhaar number under the Aadhaar
            Act does not reflect a lack of trust in citizens. Authentication by
E           the State does not presume that all its citizens are dishonest. The
            provisions of the Aadhaar Act are merely regulatory in nature -
            similar to the process of frisking at airports or other offices -
            since there is no effective method to ensure targeted delivery;
      xi. The “least intrusive test” is not applicable in the present case.
            The requirement that the least intrusive means of achieving the
F           State object must be adopted, has been rejected by Indian courts
            in a catena of decisions as it involves a value judgment and second
            guessing the wisdom of the legislature. Such a test violates the
            separation of powers between the legislature and the judiciary;
      xii. Even assuming that the ‘least intrusive method’ test applies, the
G           exercise of determining the least intrusive method of identification
            is a technical exercise and cannot be undertaken in a court of
            law;
      xiii. The Petitioners who have furnished smartcards as an alternative
            to the Aadhaar card, have not established that smartcards are
H           less intrusive than the Aadhaar card authentication process;
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                759
           [DR.[ASHOK   BHUSHAN, J.] J.]
                D. Y. CHANDRACHUD,

xiv. The ‘strict scrutiny test’ does not apply to the Aadhaar Act.             A
     That test is conceptualised in the United States, to be only applied
     to ‘suspect classifications’;
xv. Section 7 of the Aadhaar Act does not involve any waiver of
    fundamental rights;
xvi. There can be no assumption of mala fide against the government            B
     or the legislature. A mere possibility of abuse is not a ground to
     invalidate the Aadhaar Act;
xvii. Through Section 57, Parliament intended to make the use of the
      Aadhaar number available for other purposes due to the
      liberalization and privatization of the economy in areas earlier         C
      occupied by the government and public sector. Many private
      corporate bodies are operating parallel to and in competition with
      the public sector such as in banking, insurance, defence, and
      health. These are core sectors absolutely essential for national
      integrity, to the national economy and the life of people;               D
xviii. Sections 2(g), and (j) read with Section 54(2)(a) and Section
      54(1) do not suffer from excessive 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     E
      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       F
      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        G
      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,
     caste, tribe, ethnicity, language, records of entitlement, income
                                                                               H
760          SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A          or medical history’ of the person are excluded. The term ‘other
           relevant information’ has to be construed ejusdem generis and
           would have to be necessarily demographic in nature as contrasted
           with biometric information;
      xx. Aadhaar is necessary, as 3% of India’s GDP amounting to trillions
B         of rupees is allocated by Governments towards subsidies,
          scholarships, pensions, education, food and other welfare
          programmes. But approximately half of if does not reach the
          intended beneficiaries. Aadhaar is necessary for fixing this
          problem as no other identification document is widely and
          commonly possessed by the residents of the country and most
C         of the other identity documents do not enjoy the quality of
          portability;
      xxi. The enrolment and authentication processes under the Aadhaar
           Act are strongly regulated so that the data is secure;
D     xxii. The security of the CIDR is also ensured through adequate
            measures and safeguards;
      xxiii.The Aadhaar Act ensures that UIDAI has control over the
           requesting entity during the authentication process;
      xxiv. Enrolment Regulations ensure that the requirement of informed
E           consent of individuals is fulfilled while securing the Aadhaar card
            in the following ways:
           a.    Firstly, the resident is given an opportunity of verifying his
                 or her information for accuracy before uploading;
           b.    Secondly, the details and the supporting documents are
F
                 provided by the resident, or an introducer (in specific cases);
           c.    Thirdly, the enrolling agency is obliged to inform the
                 individual about the manner in which the information shall
                 be used, the nature of recipients with whom the information
                 is to be shared during authentication; and the existence of a
G                right to access information, the procedure for making request
                 for such access and details of the person/ department to
                 whom a request can be made; and
           d.    Fourthly, the uploading of information is done in the presence
                 of the individual.
H
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                          761
           [DR.[ASHOK   BHUSHAN, J.] J.]
                D. Y. CHANDRACHUD,

xxv. When an individual makes a choice to enter into a relational        A
     sphere then his or her choice as to mode of identification would
     automatically get restricted on account of the autonomy of the
     individuals or institution with whom they wish to relate. This is
     more so where the individual seeks employment, service, subsidy
     or benefits;
                                                                         B
xxvi. The Central government has the power to direct 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:                                     C
     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;                                      D
     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    E
         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      F
         an effort to exercise control over REs by way of audits.
xxviii. Regarding the security of the Aadhaar data, it is submitted:
     a.   The provisions of the Information Technology Act, 2000
          and the punitive measures provided there are made
                                                                         G
          applicable to Aadhaar data under Section 30 of the Aadhaar
          Act; and
     b.   Anyone attempting to gain unauthorized access to the CIDR
          faces stringent punishment, including imprisonment upto 10
          years.
                                                                         H
762           SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     xxix. On the control exercised by the Authority over the Requesting
            Entities (RE), the following was urged before the Court:
            a.    The standard of control exercised by the Authority on the
                  Requesting Entities is ‘fair and reasonable’ as laid down
                  under Article 21 of the Constitution;
B           b.    This control includes requirements that the RE’s procure
                  the fingerprint device from vendors controlled by the
                  Authority, with the Authority also providing the hardware
                  and software of the device. The device is subject to quality
                  checks, and must be certified by the Authority before being
C                 used by the RE. The Authority also takes measures to
                  ensure that data is sent to it in an encrypted form;
            c.    The license is given to the RE from the Authority only after
                  an audit of the RE is conducted, and the audit report is
                  approved; and
D           d.    The data collected by these REs is segregated and there
                  exists no way of aggregating this data. During authentication
                  requests, the full identity information of the individual will
                  never be transmitted back to the REs by the Authority as
                  there exists a statutory bar from sharing Biometric
E                 information under Sections 29 (1) (a) and 29(4) of the Act.
      xxx. UIDAI has entered into licensing agreements with foreign
           biometric solution providers (BSP) for software. Even though
           the source code of the software is retained by the BSP as it
           constitutes their intellectual property, the data in the server rooms
F          is secure as the software operates automatically and the biometric
           data is stored offline. There is no opportunity available to the
           BSP to extract data as they have no access to it;
      xxxi. Prior to the enactment of the Aadhaar Act, the Aadhaar project
            was governed by the provisions of the Information Technology
            Act, 2000. Section 72A of the Information Technology Act, 2000
G
            provides for punishment for disclosure of information in breach
            of law or contract;
      xxxii. The architecture of the Aadhaar Act does not enable any real
             possibility, proximate or remote, of mass surveillance in real
             time by the State;
H
 JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              763
            [DR.[ASHOK   BHUSHAN, J.] J.]
                 D. Y. CHANDRACHUD,

xxxiii. The giving of identity information and undergoing authentication      A
       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           B
      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          C
      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    D
            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 sanctioned by any
            law in force or any contract;
      c.    Another limitation is presented by the proviso to Section         E
            57, which says that the use of the Aadhaar number shall be
            subject to the procedure and obligations under Section 8
            and Chapter VI, which would necessarily also subject it to
            the operation of Chapter VII (dealing with Offences &
            Penalties) of the Act;                                            F
      d.    Under Section 57, the State, a body corporate or any other
            person cannot become Requesting Entities unless the
            limitations provided for under Section 57 are complied with;
      e.    Section 57 imposes limitations, and the use is backed by
            authentication, protection of information and punitive            G
            measures;
      f.    The expressions ‘pursuant to any law or any contract’, and
            ‘to this effect’- necessarily entail that where the State makes
            a law or any body corporate enters into a contract, the law
            or contract should be prior in point of time to the making of     H
764            SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A                  any application for becoming a Requesting Entity or a Sub-
                   Authentication User Agency under Regulation 12 of the
                   Authentication Regulations; and
              g.   A large number of small service providers simply cannot
                   become Requesting Entities under Section 57, as they will
B                  not meet the rigorous standard demanded by the eligibility
                   conditions which are prescribed by the Regulations to
                   become Authentication User Agencies (AUA)/ KYC User
                   Agencies (KUA). Therefore, this provision does not create
                   a situation whereby the common man is required to undergo
                   authentication in all activities.
C
       xxxvi. The Aadhaar Act is not exclusionary but inclusionary since it
              provides all citizens the bare necessities for a dignified existence;
       xxxvii. Having the option to opt-out is not a constitutional requirement.
      Mr Neeraj Kishan Kaul, learned Senior Counsel, made the following
D     submissions:
        i.    Aadhaar is a speedy and reliable tool for identification and
              authentication and there is no reason to hold it invalid;
        ii. Private entities and AUAs/KUAs that have built their businesses
             around it should be allowed to use Aadhaar authentication
E
             services;
        iii. Section 57 is an enabling provision and private players should be
              given the choice to use the Aadhaar authentication services as a
              tool for verification if there is a consensus between private players’
              and their customers;
F
        iv.   Aadhaar authentication has benefited women in villages and
              migrants and increased the reach of microfinance institutions,
              thus reducing predatory financing; and
        v.    A statute cannot be struck down on the ground that there is
G             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
H             amended Master Circular on April 20, 2018 which mandates that
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            765
             [DR.[ASHOK   BHUSHAN, J.] J.]
                  D. Y. CHANDRACHUD,

         Aadhaar has to be submitted to a Reporting Entity. This circular    A
         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             B
  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           C
       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 the Aadhaar ; (b) Informed
       consent when such identity information is utilized; and (c) A
       draw on the Consolidated Fund of India;                               D
  iii. Right to identity is a fundamental right as a part of the right to
       dignity, which is being realized by the Aadhaar Act;
  iv. The right to identity is also recognized under India’s international
       obligations under instruments such as the UDHR and ICCPR;
  v. In view of the large scale enrolments that have already taken           E
       place and the expenditure incurred by the Government out of
       public funds, it would be in overarching public interest to give
       Section 59 full effect. If this were not done, the only avenue
       available to the Government would be to undertake the mammoth
       enrolment task all over again under a new regime, affording           F
       only a pyrrhic victory to the Petitioners, while there would
       be substantial revenue losses to the Government and
       deprivation of beneficial schemes to those eligible, in the
       meanwhile;
  vi. Certain provisions of the Aadhaar Act have to be struck down           G
       or read down so that the Act as a whole can continue to serve its
       essential purpose - namely Sections 47, Section 8(4) and Section
       29(2) of the Act; and
  vii. Section 139AA of the Income Tax Act, 1961 violates Article 14
       and 21 of the Constitution.
                                                                             H
766                SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     Mr Zoheb Hossain, learned Counsel, made the following submissions:
           i.     The right to privacy cannot be asserted vicariously on behalf of
                  others in a representative capacity in a Public Interest Litigation,
                  because unlike other constitutional rights, right to privacy is a
                  personal right. No Section 7beneficiary has claimed a violation
B                 of their right to privacy despite the pendency of the petitions for
                  6 years before this Court and therefore, the Petitioners’ challenge,
                  in a representative capacity, to section 7 on the ground of a
                  violation of the right to privacy of third parties is not maintainable;
           ii. There is no increased threat to privacy due to Aadhaar at the level
C               of requesting entities (RE) for the following reasons:
                  a.   REs are already in possession of personal information of
                       individuals and inclusion of Aadhaar does not in any manner
                       increase the threat to privacy;
                  b.   Any information disclosed by REs will not be on account of
D                      Aadhaar and will have to be dealt with under domain specific
                       legislations, or a data protection regime or agreements
                       between the REs and their customers; and
                  c.   REs have data of their own customers and not of other
                       REs’ customers, so there is no possibility of surveillance.
E
           iii.   Safeguards against disclosure of information in the Aadhaar Act
                  are superior to the safeguards laid down in the PUCL case51.
                  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
F                 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
G                 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
H     51
           (2011) 14 SCC 331
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              767
           [DR.[ASHOK
                D. Y. CHANDRACHUD,
                        BHUSHAN, J.] J.]

      b.   Principles of natural justice cannot be observed strictly in a    A
           situation implicating national security. In such cases, it is
           the duty of the court to read into and provide for statutory
           exclusion.
v.    The laws, which are under challenge, are a part of a concerted
      scheme to promote redistributive justice and ensure substantive        B
      equality, in furtherance of Articles 14, 38, 39B and 39C. These
      laws ensure a more transparent and a cleaner system, root out
      revenue leakages and evasion of taxes, thereby giving genuine
      beneficiaries their rightful share in subsidies;
vi.   The object of the Aadhaar Act, contrary to what the petitioners        C
      have argued, is totally unrelated to suppression of freedom of
      speech and any incidental effect, if at all, would not implicate the
      right under Article 19(1)(a);
vii. The petitioners cannot contend that Section 47 of the Aadhaar
      Act is arbitrary or unreasonable for the following reasons:            D
      a.   The offences and penalties under the Act are intended to
           maintain the purity of data of the Aadhaar number holder
           and the integrity of the CIDR, which are integral in achieving
           the object of the Act;
      b.   Enrolment, storage of data in CIDR, and authentications           E
           are so vast and inherently technical that any breach of the
           provisions, can be effectively dealt with by the UIDAI;
      c.   The individual has not been left remediless, as he/she can
           make a complaint to the UIDAI directly or through the
           grievance redressal centre [Regulation 32 of the Aadhaar
                                                                             F
           (Enrolment and Update) Regulations, 2016]. After a
           complaint has been made, the UIDAI would be obliged to
           examine the complaint and accordingly lodge a complaint
           in a Court in terms of Section 47 of the Aadhaar Act;
      d.   Section 56 of the Aadhaar Act makes it clear that application
           of other laws, like the IT Act, is not barred.                    G
viii. Aadhaar must be made mandatory under Section 7 of the Aadhaar
      Act for the following reasons:
      a.   Because of the involvement of biometrics, it is almost
           impossible for one person to obtain two Aadhaar numbers.
                                                                             H
768          SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A                This will help in checking the entry of fake and duplicate
                 beneficiaries into any welfare scheme;
            b.   Other methods which were employed over the last 70 years
                 to check duplication, siphoning of money in welfare schemes,
                 large-scale tax evasion, generation of black money, and
B                appearance and re-appearance of duplicates, have turned
                 out to be futile. If Aadhaar is made voluntary, the same
                 problems are likely to creep back into the system; and
            c.   The State is bound to deploy the best technology available
                 to it to ensure proper allocation of resources as there is a
C                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;
D     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
E                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
F                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;
G           d.   The State is the trustee of public resources towards people,
                 and inaction of the State to plug the continuous leakage of
                 public resources and revenues would violate both, the
                 principle of non-arbitrariness and reasonableness envisaged
                 by Article 14 as well as the constitutional doctrine of public
H                trust; and
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                769
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

            e.   The creation of Aadhaar infrastructure and enactment of             A
                 the Aadhaar Act is a step towards the government pursuing
                 India’s international obligations under the ICESCR.
     xi.    While testing proportionality, reasonableness of a restriction has
            to be determined in an objective manner from the standpoint of
            the interests of the general public and not from the perspective         B
            of an individual right bearer claiming invasion52; and
     xii. With regard to the alleged conflict between Section 29(2) of the
          Aadhaar Act and Section 4(b)(xii) of the RTI Act, the former
          cannot be struck down as unconstitutional for the following
          reasons:                                                                   C
            a.   A provision can be struck down only if it is in violation of
                 the Constitution or if the legislature lacks competence, not
                 on the ground that it is in conflict with another law;
            b.   In any case, the obligations of public authorities under both
                 these provisions are different, as the public authority under       D
                 the RTI Act can publish the details of beneficiaries from
                 the existing database and the information received by the
                 UIDAI is not required to be shared or displayed publicly.
                 However, if any information is displayed publicly, it can be
                 challenged by an aggrieved person on the ground of privacy          E
                 which would be completely unrelated to the present
                 challenge;
            c.   The two laws operate in their distinct fields and there is no
                 conflict between them; and
            d.   A conflict between two statutes is required to be reconciled        F
                 through harmonious construction. However, since there is
                 no conflict between these two laws, there is no need for
                 harmonious construction.
D          Architecture of Aadhaar: analysis of the legal framework
      39. The architecture of the Aadhaar Act envisages the creation                 G
of a unique identity for residents on the basis of demographic and
biometric information. The Act envisages a process of identification by
which the unique identity
52
     Modern Dental College and Research Centre v State of Madhya Pradesh, (2016) 7
     SCC 353.                                                                        H
770                 SUPREME COURT REPORTS                                  [2018] 8 S.C.R.


A     assigned to each individual is verified with the demographic and biometric
      information pertaining to that individual which is stored in a centralised
      repository of data known as the Central Identities Data Repository
      (CIDR). The former part of the legislative design is implemented by its
      regulatory provisions governing enrolment53 of individuals who would be
      allotted a unique identity number. The latter part of the legislative design
B
      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
C     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
D                 information of an individual is submitted to the Central Identities
                  Data Repository for its verification and such Repository verifies
                  the correctness or lack thereof, on basis of information available
                  with it.”
      Section 2(d) speaks of the ‘authentication record’ as the record of the
E     time of authentication, the identity of the requesting entity and the response
      provided by UIDAI. The crucial definitions are those of ‘biometric
      information’, ‘core biometric information’, ‘demographic information’
      and ‘identity information’. These are as follows:
                  “(g) “biometric information” means photograph, finger print, Iris
F                 scan, or other such biological attributes of an individual as may
                  be specified by regulations;
                  ...
                  (j) “core biometric information” means finger print, Iris scan, or
                  such other biological attribute of an individual as may be specified
G
                  by regulations;

      53
           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
H          under this Act.
     JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              771
                [DR.[ASHOK   BHUSHAN, J.] J.]
                     D. Y. CHANDRACHUD,

           (k) “demographic information” includes information relating to         A
           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.
                                                                                  B
           ...
           (n) “identity information” in respect of an individual, includes his
           Aadhaar number, his biometric information and his demographic
           information.”
The largest subset of the above definitions consists of ‘identity information’    C
which is defined in an inclusive sense to comprehend the Aadhaar number,
biometric information and demographic information. Demographic
information is defined as information related to the name, date of birth
and address and other information pertaining to an individual as is specified
by the regulations. Significantly, Section 2(k) excludes, by a mandate,
race, religion, caste, tribe, ethnicity, language, records of entitlement,        D
income or medical history from the purview of demographic information.
Biometric information consists, under Section 2(g), of the photograph,
fingerprint, Iris scan, or other such biological attributes of an individual
as may be specified by regulations. Core biometric information in Section
2(j) excludes photographs (which form part of biometric information).             E
Apart from photographs, other biometric information is comprehended
within core biometric information and may be expanded to include other
biological attributes 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          F
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                    G
provided54 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.
54
     Section 10, Aadhaar Act                                                      H
772                SUPREME COURT REPORTS                                  [2018] 8 S.C.R.


A           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
      biometric information to be enrolled; and (iii) a process of undergoing
      enrolment. Section 3 provides thus:
B
                 “Section (3): Aadhaar Number.-
                 (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:
C                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
D                such manner as maybe 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
E                (c) The existence of a right to access information, the procedure
                 for making requests for such access and details of the person or
                 department in-charge to whom such requests can be made.
                 (3) On receipt of the demographic information and biometric
                 information under sub-section (1), the Authority shall, after
F                verifying the information, in such manner as may be specified by
                 regulations, issue an Aadhaar number to such individual.”
      Significantly, sub-section (1) of Section 3 recognises an entitlement, of
      every resident55 to obtain an Aadhaar number. An entitlement postulates
      a right. A right contemplates a liberty, for it is in the exercise of the
G     liberty that the individual asserts a right. What is a matter of an
      entitlement is evidently a matter of option and not a compulsion. That
      constitutes the fundamental postulate of Section 3. However, the
      entitlement to obtain the Aadhaar number is conditioned by the requirement
      55
           Section 2(v) states: “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
H          twelve months immediately preceding the date of application for enrolment
     JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                   773
                [DR.[ASHOK
                     D. Y. CHANDRACHUD,
                             BHUSHAN, J.] J.]

of submitting demographic and biometric information and participating                  A
in the process of enrolment.
        43. The collection of demographic and biometric information is
carried out by an enrolling agency. “Enrolling agency” has been defined
under Section 2(l) of the Act as an agency, appointed by UIDAI or a
Registrar56, for collecting demographic and biometric information of                   B
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.57
Sub-section (2) of Section 3 requires the enrolling agency to disclose to              C
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             D
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 information has a statutory entitlement to fully understand
how the information which is disclosed is going to be used and with
whom the information is likely to be shared during authentication.58 Access            E
of the information supplied to the individual, it has been argued, is an
integral feature of the design created by the statute. These three facets
are conditions precedent to the disclosure of information by the individual.
Before the individual does so, he or she must have a full disclosure
which would enable them to form an informed decision on the exercise                   F
of the choice which underlies an entitlement to an Aadhaar number. The
entitlement which is recognised by sub-section (1) is enforced by the
mandatory requirements of sub-section (2). Before an Aadhaar number
is issued, sub-section (3) requires the authority to verify the information
disclosed, in the manner prescribed by regulations. The Act leaves it to
regulations to specify how verification will be carried out.                           G

56
   Section 2(s) states: “Registrar” means any entity authorised or recognised by the
   Authority for the purpose of enrolling individuals under this Act
57
   Regulation 7, Aadhaar (Enrolment and Update) Regulations, 2016
58
   Section 3(2), Aadhaar Act.
                                                                                       H
774             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A             44. Sections 4, 5 and 6 indicate the characteristics which are
      attributed to Aadhaar numbers, legislative recognition of the steps
      necessary to ensure financial inclusion and the requirement of periodical
      updation of information. Under Section 4, three important features attach
      to the possession of an Aadhaar number. The first is that the number is
      unique to one individual and to that individual alone. Once assigned, the
B
      Aadhaar number cannot be reassigned to any other individual. The second
      feature is that an Aadhaar number is random and bears no relation to
      the attributes or identity of its holder. The third feature of Section 4 is
      that once assigned, an Aadhaar number can be accepted as proof of
      identify of its holder “for any purpose”. Under Section 5, UIDAI is
C     under a mandate to adopt special measures to issue Aadhaar numbers
      to women, children, senior citizens, the differently abled, unskilled and
      unorganised workers, nomadic tribes, persons who do not have permanent
      places of abode and to other categories which may be defined by the
      regulations. Section 6 contains an enabling provision by which the
      authority may require holders to update their demographic and biometric
D
      information periodically, as specified under regulations. An Aadhaar
      number also does not, by itself, constitute a conferment of a right of
      citizenship, or domicile (Section 9).
              45. Chapter III provides for Authentication. By virtue of Section 7,
      an enabling provision has been made by which the Union or state
E     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
F               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
G               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
H               identification for delivery of the subsidy, benefit or service.”
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            775
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

Section 3 (as explained earlier) postulates an entitlement to an Aadhaar      A
number. An entitlement envisages a right which may (or may not) be
exercised by the resident. An entitlement is, after all, an option. Section
7, however, contemplates a requirement. It covers subsidies, benefits
or services that are charged to the Consolidated Fund of India; the connect
being either in regard to the source of expenditure or the receipts. The
                                                                              B
statutory definitions of the expressions ‘benefit’, ‘service’ and ‘subsidy’
are contained in clauses (f),(w) and (x) of Section 2 which provide as
follows:
        “(f) “benefit” means any advantage, gift, reward, relief, or
        payment, in cash or kind, provided to an individual or a group of
        individuals and includes such other benefits as may be notified       C
        by the Central Government;”
        (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;                                            D

        (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.”
                                                                              E
        46. Section 7 encapsulates a purpose, a condition and a
requirement. The purpose incorporated in the provision is to establish
the identity of an individual. The condition which it embodies is for the
receipt of a subsidy, benefit or service for which the expenditure is
incurred or the receipts form part of the Consolidated Fund of India.
Where the purpose and condition are fulfilled, the central or state           F
governments may require that the individual should (i) undergo
authentication; or (ii) furnish proof of possession of an Aadhaar number;
or (iii) provide proof of an application for enrolment where the Aadhaar
number has not been assigned. Three alternatives are stipulated in Section
7. Where the purpose and condition (noted above) are fulfilled, the           G
individual has to undergo authentication. Alternately, the individual has
to furnish proof that he or she possesses an Aadhaar number. However,
if an Aadhaar number has not been assigned to the individual, he or she
would have to make an application for enrolment. In a situation where
no Aadhaar number has been assigned as yet, the proviso stipulates that
                                                                              H
776             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     alternate 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
B
      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
C     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
D     compulsive or mandatory where a person desires a subsidy, benefit or
      service for which expenditure is incurred from or the receipt of which
      forms part of the Consolidated Fund of India. Section 7 acts as an
      overriding provision over Section 3.
      47    The manner in which an authentication is carried out is elaborated
E     upon by Section 8. Section 8 is in the following terms:
              “Authentication of Aadhaar number.-
              (1) The Authority shall perform authentication of the Aadhaar
              number of an Aadhaar number holder submitted by any
              requesting entity, in relation to his biometric information or
F             demographic information, subject to such conditions and on
              payment of such fees and in such manner as may be specified
              by regulations.
              (2) A requesting entity shall –
                (a) unless otherwise provided in this Act, obtain the consent of
G               an individual before collecting his identity information for the
                purposes of authentication in such manner as may be specified
                by regulations; and
                (b) ensure that the identity information of an individual is only
                used for submission to the Central Identities Data Repository
H               for authentication.
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                           777
                  [DR.[ASHOK   BHUSHAN, J.] J.]
                        D. Y. CHANDRACHUD,

           (3) A requesting entity shall inform, in such manner as may be       A
           specified by regulations, the individual submitting his identify
           information for authentication, the following details with respect
           to authentication, namely:-
             (a) the nature of information that may be shared upon
             authentication;                                                    B
             (b) the uses to which the information received during
             authentication may be put by the requesting entity; and
             (c) alternatives to submission of identity information to the
             requesting entity.
           (4) The Authority shall respond to an authentication query with      C
           a positive, negative or any other appropriate response sharing
           such identity information excluding any core biometric
           information.”
As we have noticed earlier, authentication involves a process in which
the Aadhaar number, together with the demographic or biometric                  D
information, is submitted to the CIDR for verification and is verified to
be correct or otherwise by the repository on the basis of the information
available with it. Under sub-section (1) of Section 8 authentication has
to be performed on a request submitted by a requesting entity. The
expression ‘requesting entity’ is defined in Section 2(u) as follows:
                                                                                E
           “(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.”
This definition also does not prohibit the engagement of private agencies
                                                                                F
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         G
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.59 During the course
59
     Section 8(3), Aadhaar Act                                                  H
778                SUPREME COURT REPORTS                        [2018] 8 S.C.R.


A     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.60 Core biometric
      information cannot be shared. The modes of authentication are as
      mentioned in Regulation 4 of the Aadhaar (Authentication) Regulations
      2016. It can be based on (i) demographic information; (ii) a one-time
B
      password with limited time validity; (iii) biometrics or (iv) multi-factor
      authentication (a combination of two or more of the above). The
      Requesting Agency chooses the mode according to its requirement.
             48. UIDAI is the umbrella entity under the Aadhaar Act. The
      statutory backing to the authority of UIDAI to undertake the responsibility
C     for the processes of enrolment and authentication and maintenance of
      CIDR has been provided under Chapter IV of the Act. Section 11 provides
      that the Central Government shall, by notification, establish UIDAI, a
      body corporate61, to be responsible for the processes of enrolment and
      authentication and perform such other functions as are assigned to it
D     under the Act. The composition of UIDAI has been provided under
      Section 12: a Chairperson (appointed on part-time or full-time basis);
      two part-time Members, and the chief executive officer who shall be
      the Member- Secretary, to be appointed by the Central Government.
      Section 23 enunciates the powers and functions of the UIDAI. Sub-
      section (1) of Section 23 requires UIDAI to develop the policy, procedure
E     and systems for issuing Aadhaar numbers to individuals and to perform
      authentication. Section 23(2) provides an inclusive list of the powers and
      functions of UIDAI:
                 “(2) Without prejudice to sub-section (1), the powers and
                 functions of the Authority, inter alia, include—
F
                   (a) specifying, by regulations, demographic information and
                   biometric information required for enrolment and the processes
                   for collection and verification thereof;
                   (b) collecting demographic information and biometric
G                  information from any individual seeking an Aadhaar number in
                   such manner as may be specified by regulations;
                   (c) appointing of one or more entities to operate the Central
                   Identities Data Repository;
      60
           Section 8(4), Aadhaar Act
H     61
           Section 11(2), Aadhaar Act
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                          779
           [DR.[ASHOK   BHUSHAN, J.] J.]
                D. Y. CHANDRACHUD,

    (d) generating and assigning Aadhaar numbers to individuals;         A
    (e) performing authentication of Aadhaar numbers;
    (f) maintaining and updating the information of individuals in
    the Central Identities Data Repository in such manner as may
    be specified by regulations;
                                                                         B
    (g) omitting and deactivating of an Aadhaar number and
    information relating thereto in such manner as may be specified
    by regulations;
    (h) specifying the manner of use of Aadhaar numbers for the
    purposes of providing or availing of various subsidies, benefits,    C
    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;                    D
    (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;                                              E
    (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        F
    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;                                                       G

    (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 them under this Act in such
    manner as may be specified by regulations;
                                                                         H
780            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A              (p) appointing such committees as may be necessary to assist
               the Authority in discharge of its functions for the purposes of
               this Act;
               (q) promoting research and development for advancement in
               biometrics and related areas, including usage of Aadhaar
B              numbers through appropriate mechanisms;
               (r) evolving of, and specifying, by regulations, policies and
               practices for Registrars, enrolling agencies and other service
               providers;
               (s) setting up facilitation centres and grievance redressal
C              mechanism for redressal of grievances of individuals, Registrars,
               enrolling agencies and other service providers;
               (t) such other powers and functions as may be prescribed.”
      Under Section 54, UIDAI is empowered to make regulations and rules
D     consistent with the Act, for carrying out the provisions of the Act. Sub-
      section (2) of Section 54 provides that UIDAI may make regulations
      covering any of the following matters:
               “(a) the biometric information under clause (g) and the
               demographic information under clause (k), and the process of
               collecting demographic information and biometric information
E
               from the individuals by enrolling agencies under clause (m) of
               section 2;
               (b) the manner of verifying the demographic information and
               biometric information for issue of Aadhaar number under sub-
               section (3) of section 3;
F
               (c) the conditions for accepting an Aadhaar number as proof
               of identity of the Aadhaar number holder under sub-section
               (3) of section 4;
               (d) the other categories of individuals under section 5 for whom
G              the Authority shall take special measures for allotment of
               Aadhaar number;
               (e) the manner of updating biometric information and
               demographic information under section 6;
               (f) the procedure for authentication of the Aadhaar number
H              under section 8;
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                         781
           [DR.[ASHOK   BHUSHAN, J.] J.]
                D. Y. CHANDRACHUD,

    (g) the other functions to be performed by the Central Identities   A
    Data Repository under section 10;
    (h) the time and places of meetings of the Authority and the
    procedure for transaction of business to be followed by it,
    including the quorum, under sub-section (1) of section 19;
    (i) the salary and allowances payable to, and other terms and       B
    conditions of service of, the chief executive officer, officers
    and other employees of the Authority under sub-section (2) of
    section 21;
    (j) the demographic information and biometric information under
    clause (a) and the manner of their collection under clause (b)      C
    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;
                                                                        D
    (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
                                                                        E
    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-
                                                                        F
    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        G
    sub-section (2) of section 23;
    (q) the procedure for issuance of new Aadhaar number to
    existing Aadhaar number holder under clause (n) of sub-section
    (2) of section 23;
                                                                        H
782            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A               (r) manner of authorising Registrars, enrolling agencies or other
                service providers to collect such fees for services provided by
                them under clause (o) of sub-section (2) of section 23;
                (s) policies and practices to be followed by the Registrar,
                enrolling agencies and other service providers under clause (r)
B               of sub-section (2) of section 23;
                (t) the manner of accessing the identity information by the
                Aadhaar number holder under the proviso to sub-section (5)
                of section 28;
                (u) the manner of sharing the identity information, other than
C               core biometric information, collected or created under this Act
                under sub-section (2) of section 29;
                (v) the manner of alteration of demographic information under
                sub-section (1) and biometric information under sub-section
                (2) of section 31;
D
                (w) the manner of and the time for maintaining the request for
                authentication and the response thereon under sub-section (1),
                and the manner of obtaining, by the Aadhaar number holder,
                the authentication records under sub-section (2) of section 32;
                (x) any other matter which is required to be, or may be, specified,
E
                or in respect of which provision is to be or may be made by
                regulations.”
      Section 11(1), read with Sections 23(2) and 54(2), indicates that UIDAI
      is the sole authority vested with the power and responsibility of carrying
      out numerous functions. These functions include:
F
        (i)   collection of demographic information and biometric information
              from individuals;
        (ii) generating and assigning Aadhaar numbers to individuals;
        (iii) performing authentication of Aadhaar numbers;
G       (iv) maintaining and updating the information of individuals in the
              CIDR;
        (v) omitting and deactivating of an Aadhaar number;
        (vi) specifying the manner of use of Aadhaar numbers for the
              purposes of providing or availing of various subsidies, benefits,
H             services and other purposes;
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            783
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

  (vii) specifying the terms and conditions for appointment of Registrars,    A
        enrolling agencies and service providers and revocation of
        appointments;
  (viii) specifying various processes relating to data management,
         security protocols and other technological safeguards under the
         Act;                                                                 B
  (ix) setting up facilitation centres and mechanisms for the redressal
       of the grievances of individuals, Registrars, enrolling agencies
       and other service providers; and
  (x) other functions prescribed by the Central government.
                                                                              C
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,         D
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      E
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            F
provisions, open the scope for the involvement of private entities in the
Aadhaar project. This is also evident from Section 57 of the Act, which
allows the use of the Aadhaar number, by the state, corporate entities or
persons to establish the identity of an individual:
        “57. Act not to prevent use of Aadhaar number for other purposes
                                                                              G
        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:                                                       H
784              SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A              Provided that the use of Aadhaar number under this section shall
               be subject to the procedure and obligations under section 8 and
               Chapter VI.”
             50. The responsibility to ensure the security of identity information
      and authentication records of individuals has been placed on UIDAI.62
B     UIDAI is also required to ensure confidentiality of identity information
      and authentication records of individuals,63 except in circumstances,
      where disclosure of information is permitted by the Act.64 Section 28(3)
      requires UIDAI to take all necessary measures to ensure that the
      information in its possession or control, including information stored in
      the CIDR, is secured and protected against access, use or disclosure
C     not permitted under the Act or regulations, and against accidental or
      intentional destruction, loss or damage. For the purpose of maintaining
      the security and confidentiality of the information of individuals, UIDAI
      is also required, under Section 28(4), to:
               “(a) adopt and implement appropriate technical and organisational
D              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
E
               (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.”
F
      Except where it has otherwise been provided in the Aadhaar Act, a
      burden is placed (under Section 28(5)) upon UIDAI, its officers, other
      employees (whether during service or thereafter), and any agency that
      maintains the CIDR not to reveal any information stored or the
      authentication record to anyone. An Aadhaar number holder, however,
G     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)).
      62
         Section 28(1), Aadhaar Act
      63
         Section 28(2), Aadhaar Act
      64
H        Section 33, Aadhaar Act
     JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                           785
                [DR.[ASHOK
                     D. Y. CHANDRACHUD,
                             BHUSHAN, J.] J.]

Section 29 puts restrictions on sharing of information, collected or created   A
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           B
           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.                                     C
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 information for authentication; nor disclosed further,
except with the prior consent of the individual to whom such information       D
relates.
Sub-section (4) prohibits publishing, display or posting publicly of any
Aadhaar number or core biometric information collected or created under
the Act in respect of an Aadhaar number holder, except for such purposes
as may be specified by the regulations. Section 30 contemplates that           E
the biometric information collected and stored in an electronic form is to
be deemed “sensitive personal data or information”. The provision
specifically relates to biometric information. The provision dilutes the
protection that should be given to demographic information. Further, a
statutory duty has been placed upon UIDAI to maintain authentication
records in the manner and for a time period prescribed by regulations.65       F
The issue of maintenance of authentication records by UIDAI has been
contentious and is dealt in a subsequent section titled “Proportionality”.
A statutory right is provided to every Aadhaar number holder to obtain
his authentication record in the manner specified by regulations.66 Section
32(3) prohibits UIDAI (either by itself or through any entity under its        G
control) to collect, keep or maintain any information about the purpose
of authentication.

65
     Section 32(1), Aadhaar Act
66
     Section 32(2), Aadhaar Act
                                                                               H
786            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A            51. The Aadhaar Act allows disclosure of individual information
      in limited circumstances. The manner and purpose for which information
      of individuals, including identity information or authentication records,
      can be disclosed has been provided under Section 33 of the Act. Section
      33 states:
B            “(1) Nothing contained in sub-section (2) or sub-section (5) of
             section 28 or sub-section (2) of section 29 shall apply in respect
             of any disclosure of information, including identity information or
             authentication records, made pursuant to an order of a court not
             inferior to that of a District Judge:
C            Provided that no order by the court under this sub-section shall
             be made without giving an opportunity of hearing to the Authority.
             (2) Nothing contained in sub-section (2) or sub-section (5) of
             section 28 and clause (b) of sub-section (1), sub-section (2) or
             sub-section (3) of section 29 shall apply in respect of any
D            disclosure of information, including identity information or
             authentication records, made in the interest of national security
             in pursuance of a direction 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:

E            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:

F            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
G
      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
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            787
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

manner specified by regulations. On receipt of a request for alteration       A
of demographic or biometric information, UIDAI is vested with the
power, subject to its satisfaction, to make alterations as required in the
record relating to the Aadhaar number holder and to intimate the alteration
to the holder. Sub-section (4) of Section 31 prohibits alteration of any
identity information in the CIDR except in the manner provided in the
                                                                              B
Act or regulations made in this behalf.
       52. Chapter VII provides offences and penalties. Under Section
34, a penalty has been provided for impersonation at the time of enrolment.
Section 35 creates a penalty for impersonation of the Aadhaar number
holder by changing demographic or biometric information. Section 37
provides a penalty for disclosing identity information (which was collected   C
in the course of enrolment or authentication).
Under Section 38, a penalty for unauthorised access to the CIDR has
been provided. Section 38 provides thus:
        “Whoever, not being authorised by the Authority, intentionally,—      D
        (a) accesses or secures access to the Central Identities Data
        Repository;
        (b) downloads, copies or extracts any data from the Central
        Identities Data Repository or stored in any removable storage
        medium;                                                               E
        (c) introduces or causes to be introduced any virus or other
        computer contaminant in the Central Identities Data Repository;
        (d) damages or causes to be damaged the data in the Central
        Identities Data Repository;
                                                                              F
        (e) disrupts or causes disruption of the access to the Central
        Identities Data Repository;
        (f) denies or causes a denial of access to any person who is
        authorised to access the Central Identities Data Repository;
        (g) reveals any information in contravention of sub-section (5)       G
        of section 28, or shares, uses or displays information in
        contravention of section 29 or assists any person in any of the
        aforementioned acts;
        (h) destroys, deletes or alters any information stored in any
        removable storage media or in the Central Identities Data             H
788            SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A             Repository or diminishes its value or utility or affects it injuriously
              by any means; or
              (i) steals, conceals, destroys or alters or causes any person to
              steal, conceal, destroy or alter any computer source code used
              by the Authority with an intention to cause damage,
B             shall be punishable with imprisonment for a term which may
              extend to three years and shall also be liable to a fine which shall
              not be less than ten lakh rupees.”
      Section 39 imposes a penalty for tampering with data in the CIDR.
      Sections 40 and 41 impose penalties on requesting and enrolment agencies
C     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
D     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
E     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, except when a complaint is
F     made by UIDAI or any officer or person authorised by it. The provision
      indicates that the scope of cognizance is limited. It does not allow an
      individual who finds that there is any violation under the Act, to initiate
      criminal proceedings. The scope of grievance redressal under the Act is
      restrictive and works only on the action of UIDAI or a person authorised
G     by it. UIDAI has set up a grievance redressal mechanism as contemplated
      by Section 23(2)(s) of the Aadhaar Act. There is no grievance redressal
      mechanism if any breach or offence is committed by UIDAI itself. The
      right of an individual to seek remedy under the Act if his/her rights are
      violated will be discussed subsequently. Under sub-Section (2), no court
      inferior to that of a Chief Metropolitan Magistrate or a Chief Judicial
H     Magistrate can try any offence punishable under the Act.
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              789
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

Section 48 empowers the Central Government to supersede UIDAI, in               A
certain situations. Under Section 50, UIDAI, in exercise of its powers
or performance of its functions under the Act, shall be bound by the
written directions on questions of policy of the Central Government.
Section 51 vests power in UIDAI to delegate to any member, officer or
any other person, its powers and functions under the Act (except the
                                                                                B
power under section 54) as it may deem necessary. Section 51 grants a
wide discretion to the UIDAI to delegate any of its powers and functions.
Section 55 requires every rule and regulation made under the Aadhaar
Act to be laid down before each House of Parliament. The Section
states:
                                                                                C
        “55. Laying of rules and regulations before Parliament.-
        Every rule and every regulation made under this Act shall be
        laid, as soon as may be after it is made, before each House of
        Parliament, while it is in session, for a total period of thirty days
        which may be comprised in one session or in two or more                 D
        successive sessions, and if, before the expiry of the session
        immediately following the session or the successive sessions
        aforesaid, both Houses agree in making any modification in the
        rule or regulation, or both the Houses agree that the rule or
        regulation should not be made, the rule or regulation shall
        thereafter have effect only in such modified form or be of no           E
        effect, as the case may be; so, however, that any such
        modification or annulment shall be without prejudice to the validity
        of anything previously done under that rule or regulation.”
UIDAI needs to place the regulations framed by it before Parliament.
                                                                                F
       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           G
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.
                                                                                H
790            SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     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
B
      is not open to judicial review. The Attorney General also urged that the
      Aadhaar Act does fall under Article 110.
      Article 110 provides thus:
              “(1) For the purposes of this Chapter, a Bill shall be deemed to
C             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
D             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
E             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
F
              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 audit of the accounts of the Union or of a
              State; or
G
              (g) any matter incidental to any of the matters specified in sub-
              clauses (a) to (f).
              (2) A Bill shall not be deemed to be a Money Bill by reason only
              that it provides for the imposition of fines or other pecuniary
H             penalties, or for the demand or payment of fees for licences or
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               791
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

             fees for services rendered, or by reason that it provides for the      A
             imposition, abolition, remission, alteration or regulation of any
             tax by any local authority or body for local purposes.
             (3) If any question arises whether a Bill is a Money Bill or not,
             the decision of the Speaker of the House of the People thereon
             shall be final.                                                        B
             (4) There shall be endorsed on every Money Bill when it is
             transmitted to the Council of States under article 109, and when
             it is presented to the President for assent under article 111, the
             certificate of the Speaker of the House of the People signed by
             him that it is a Money Bill.”                                          C
            55. The key questions before this Court are:
      (i)    Whether under Article 110(3), the decision of the Speaker of the
             Lok Sabha, that a Bill is a Money Bill, is immune from judicial
             review;
                                                                                    D
      (ii) If the answer to (i) is in the negative, whether the Aadhaar Act
           is a Money Bill under Article 110(1) of the Constitution; and
      (iii) 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
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               F
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                  G
has the discretion to “either accept or reject all or any of the
recommendations” made by the Rajya Sabha.67 If the Lok Sabha accepts
any of the recommendations of the Rajya Sabha, the Money Bill is deemed
to have been passed by both Houses of the Parliament “with the
67
     Article 109(2), The Constitution of India                                      H
792              SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     amendments recommended” by the Rajya Sabha and accepted by the
      Lok Sabha.68 However, when the Lok Sabha “does not accept any of
      the recommendations” of the Rajya Sabha, the Money Bill is said to
      have been passed by both Houses in the form in which it was originally
      passed by the Lok Sabha.69 If a Money Bill after being passed by the
      Lok Sabha and transmitted to the Rajya Sabha for its recommendations
B
      is not returned to the Lok Sabha within a period of fourteen days, it is
      then deemed to have been passed by both the Houses of the Parliament
      in the form in which it was originally passed by the Lok Sabha. 70 When
      a Money Bill has been passed by the Houses of the Parliament, Article
      111 requires it to be presented to the President along with the Lok Sabha
C     Speaker’s certificate for assent71. Article 117(1) also provides that a Bill
      “making provision for any of the matters specified in sub-clauses (a) to
      (f) of clause (1) of article 110” shall also not be introduced in the Rajya
      Sabha.
             57. The Constitution contains corresponding provisions for Money
D     Bills introduced in and passed by a state legislative assembly. Article
      198 provides a special procedure for Money Bills in the state legislative
      assembly. Article 199(3) provides for the finality of the decision of the
      Speaker of the Legislative Assembly. Under Article 200, when a Money
      Bill has been passed by the State Legislature, it is to be presented to the
      Governor, along with the Speaker’s certificate, for assent.72
E
      Article 107 contains provisions for the introduction and passing of Bills
      in general and provides thus:
               “(1) Subject to the provisions of articles 109 and 117 with respect
               to Money Bills and other financial Bills, a Bill may originate in
F              either House of Parliament.
               (2) Subject to the provisions of articles 108 and 109, a Bill
               shall not be deemed to have been passed by the Houses
               of Parliament unless it has been agreed to by both Houses,
               either without amendment or with such amendments only
G              as are agreed to by both Houses.

      68
         Article 109(3), The Constitution of India
      69
         Article 109(4), The Constitution of India
      70
         Article 109(5), The Constitution of India
      71
         Article 110(4), The Constitution of India
H     72
         Article 199(4), The Constitution of India
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            793
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

        (3) A Bill pending in Parliament shall not lapse by reason of the     A
        prorogation of the Houses.
        (4) A Bill pending 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      B
        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              C
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.             D
       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 regarded as being passed by       E
Parliament until both the Houses agree to its passage without amendments
or with the amendments as proposed. A constitutional discretion is
conferred on the Speaker of the Lok Sabha to decide whether a Bill is a
Money Bill. When the Speaker of the Lok Sabha declares a Bill to be a
Money Bill, the Rajya Sabha is left only with the option to make
recommendations to the Bill within the deadline of fourteen days. Being       F
only recommendations, they do not bind the Lok Sabha. They may either
be accepted or rejected by the Lok Sabha.
       60. The Rajya Sabha is a constitutional body in a bicameral
legislature. The makers of the Constitution adopted bicameralism from
Britain. The origin of the limited role that the Upper House has in the       G
passing of a Money Bill can be traced to the British Parliament Act,
1911, which will be discussed in a subsequent part of this analysis. The
draftspersons of the Constitution were conscious of the impact of a
misuse of institutional power. They provided for a detailed blue print of
the architecture of constitutional governance. It is necessary to
                                                                              H
794               SUPREME COURT REPORTS                                     [2018] 8 S.C.R.


A     understand our constitutional history in order to comprehend the scope
      of the finality attributed to the Speaker’s decision on whether or not a
      Bill is a Money Bill.
             61. The origins of the procedure of passing Money Bills in the
      United Kingdom are older than the Parliament Act of 1911. The
B     authoritative treatise73, by Thomas Erskine May, on the law, privileges,
      proceedings and usage of Parliament in Britain dwells on the history of
      the evolution of the relationship between the House of Commons and
      the House of Lords with regard to their powers of taxation and in relation
      to national revenue and public expenditure.74
C     A grant imposed by the House of Commons would become law in effect,
      only after the assent of the House of Lords and of the Queen.75 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 167176 and 167877 respectively, the Commons
      passed two resolutions to curtail the powers of the House of Lords so
D     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 such Bill.
      The exclusion of the Lords was so strictly followed that the Commons
      even denied to the former, the power of authorising the taking of fees,
E     imposing pecuniary penalties or of varying the mode of suing for them,
      73
         Thomas Erskine May, A treatise on the law, privileges, proceedings and usage of
         Parliament, Ninth Edition (1883)
      74
         Ibid, at pages 637-638. It notes: “At length, when the Commons had increased in
         political influence, and the subsidies voted by them had become the principal source
F        of national revenue, they gradually assumed their present position in regard to taxation
         and supply, and included the Lords as well as themselves in their grants. So far back
         as 1407, it was stated by King Henry IV, in the ordinance called “The Indemnity of
         the Lords and Commons”, that grants were “granted by the Commons, and assented
         to by the Lords”.”
      75
         Ibid, at page 638
      76
         Ibid, at page 641. The Resolution stated: “That in all aids given to the king by the
G        Commons, the rate or tax ought not to be altered”.
      77
         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.”
H
     JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             795
                [DR.[ASHOK   BHUSHAN, J.] J.]
                     D. Y. CHANDRACHUD,

or of applying them when recovered, though such provisions were                  A
necessary to give effect to the general enactments of a Bill.78 Since this
strict enforcement was found to be “attended with unnecessary
inconvenience”, it led to the adopting of a Standing Order in 1849 which
accommodated space to the House of Lords for suggesting amendments
on legislative issues.79 However, the constitutional skirmishes continued.
                                                                                 B
They eventually led to the passage of the Parliament Act of 1911, which
essentially deprived the House of Lords of the right to reject Money
Bills.
       62. The Parliament Act 1911 was explicitly aimed at “regulating
the relations between the two Houses of Parliament”80. The Preamble
of the Act indicates that it was enacted for “restricting the existing powers    C
of the House of Lords”81. Section 1(1) provides for the power of the
House of Lords on Money Bills:
         “If a Money Bill, having been passed by the House of Commons,
         and sent up to the House of Lords at least one month before the
         end of the session, is not passed by the House of Lords without         D
         amendment within one month after it is so sent up to that House,
         the Bill shall, unless the House of Commons direct to the contrary,
         be present to His Majesty and become an Act of Parliament on
         the Royal Assent being signified, notwithstanding that the House
         of Lords have not consented to the Bill.”                               E
“Money Bill” was defined statutorily for the first time. Section 1(2)
provided:
         “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          F
         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, [the National Loans Fund]
         or on money provided by Parliament, or the variation or repeal
         of any such charges; supply; the appropriation, receipt, custody,       G
         issue or audit of accounts of public money; the raising or guarantee
         of any loan or the repayment thereof; or subordinate matters
78
   Ibid, at pages 642-643
79
   Ibid, pages 646-647
80
   Preamble of the Parliament Act 1911
81
   Ibid                                                                          H
796                 SUPREME COURT REPORTS                                    [2018] 8 S.C.R.


A                 incidental to those subjects or any of them. In this subsection 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
B     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
C     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
D     a Money Bill. The Speaker does not certify a Bill until it has reached the
      form in which it will leave the House of Commons, that is, at the end of
      its Commons stage. The Speaker can only decide whether or not to
      certify a Bill once it has passed the House.82
      Section 3 of the 1911 Act provides finality to the certificate issued by the
E     Speaker and renders it immune from judicial review. According to it:
                  “Any certificate of the Speaker of the House of Commons given
                  under this Act shall be conclusive for all purposes, and shall
                  not be questioned in any court of law.”
                                                      (Emphasis supplied)
F     The Act provides finality to the decision of the Speaker of the House of
      Commons. By using the phrase “shall not be questioned in any court of
      law”, the Act grants immunity to the Speaker’s decision from judicial
      review.
      The statutory concept of a ‘Money Bill’ and the Speaker’s certification
G     of a Bill as a ‘Money Bill’ introduced by the Parliament Act, 1911
      ultimately found its way into the Constitution of India, but with significant
      modifications.
      82
           House of Lords, Select Committee on the Constitution, Money Bills and Commons
           Financial Privilege (2011), available at https://publications.parliament.uk/pa/ld201011/
H          ldselect/ldconst/97/97.pdf
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             797
             [DR.[ASHOK   BHUSHAN, J.] J.]
                  D. Y. CHANDRACHUD,

      63. In India, the categorization of Money Bills can be said to          A
have begun from the Commonwealth of India Bill 1925, which was
drafted by a National Convention comprised of 250 members, with Tej
Bahadur Sapru as its Chairman. Article 36 of the Commonwealth Bill
provided:
       “36. (a) Any Bill which appropriates revenue or moneys for the         B
       ordinary annual services of the Government shall deal only with
       such appropriation.
       (b) Bills imposing taxation· shall deal only with the imposition of
       taxes, and any provision therein dealing with any other matter
       shall be of no effect.
                                                                              C
       (c) Bills for the appropriation of revenues or moneys or imposing
       taxation shall be introduced only by a member of the Cabinet,
       and can only originate in the Legislative Assembly.”
The Bill neither provided a definition of a Money Bill nor did it discuss
the role of the Speaker of the Assembly of elected representatives.
                                                                              D
In its Madras session of December 1927, the Indian National Congress,
as a response to the setting up of the Simon Commission (which did not
have any Indian members) decided to set up an All Parties’ Conference
to draft a Constitution for India. With Motilal Nehru as the Chairman of
the Committee constituted by the All Parties’ Conference, a Report was
                                                                              E
prepared. 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,   F
       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    G
       “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
                                                                              H
798             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     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 recommendations made by the Senate (the
      Upper House). Article 19 of the Report provided thus:
B             “A money bill passed by the House of Representatives shall be
              sent to the Senate for its recommendations and it shall be returned
              not later than… days therefrom to the House of Representatives,
              which may pass it, accepting or rejecting all or any of the
              recommendations of the Senate; and the bill so passed shall be
              deemed to have been passed by both chambers.”
C
      While the Constituent Assembly of India was in session, the Socialist
      Party of India came up with a “Draft Constitution of the Republic of
      India”, based on its ideologies. Article 147 of its Draft Constitution
      provided:
D             “147. (1) A Bill making provision-
              (a) for imposing, abolishing, remitting, altering or regulating any
              tax ; or
              (b) for regulating the borrowing of money, or giving any guarantee
              by the Government, or for amending the law with respect to any
              financial obligations undertaken or to be undertaken by the
E
              Government; or
              (c) for declaring any expenditure to be expenditure charged on
              the public revenues, or for increasing the amount of any such
              expenditure
              shall be deemed as a money Bill and shall not be introduced or
F
              moved except on the recommendation of the Government.
              (2) A Bill or amendment shall not be deemed to make provision
              for any of the purposes aforesaid by reason only that it provides
              for the Imposition of fines or other pecuniary penalties, or for
              the demand and payment of fees for licenses or fees for services
G             rendered, or by reason that it provides for the imposition, abolition,
              remission, alteration, or regulation of tax by any local authority
              or body for local purposes.
              (3) In case of dispute whether a Bill is a money Bill or not, the
              decision of the Speaker, or in his absence of the Deputy Speaker,
H             shall be final.”
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              799
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

The Draft Constitution of the Socialist Party conferred a discretion on         A
the Speaker of the Lower House, and in his absence, on the Deputy
Speaker, to decide whether a Bill is a Money Bill.
      64. There was another model present before the makers of the
Indian Constitution. British India was governed by the provisions of the
Government of India Act, 1935, which provided for two Houses of                 B
Parliament - the Council of States (Upper House) and Federal Assembly
(Lower House). Section 37 of the Government of India Act 1935 made
special provisions for financial bills:
        “37.-(1) A Bill or amendment making provision- (a) for imposing
        or increasing any tax; or (b) for regulating the borrowing of money     C
        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            D
        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     E
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      F
        shall not be called in question on the ground of any alleged
        irregularity of procedure.
        (2) No officer or other member of the Legislature in whom
        powers are vested by or under this Act for regulating procedure
        or the conduct of business, or for maintaining order, in the            G
        Legislature shall be subject to the jurisdiction of any court in
        respect of the exercise by him of those powers.”
The Constituent Assembly evidently had these legislative precedents
relating to Money Bills which it would have considered while formulating
its drafts.                                                                     H
800              SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A           65. While the proceedings of the Constituent Assembly were in
      motion, Sir B N Rau, as its constitutional advisor, prepared a memorandum
      of the Draft Constitution for the Union Constitution Committee. It
      envisaged a Parliament of the Union consisting of the President and two
      Houses—the Senate and the House of Representatives.83 One of the
      proposals discussed in the meetings of the Union Constitution Committee
B
      was that “Money Bills would originate in the House of the People and
      the power of the other House would be limited to making suggestions
      for amendment, which the House of the People could accept or reject”. 84
      B Shiva Rao has recorded what transpired during the course of the
      proceedings of the Constituent Assembly:
C              “The Draft also included provisions regarding legislative
               procedure, procedure in financial matters and general procedure
               for the conduct of business. No Bill could be submitted for the
               President’s assent unless it had been passed in identical form by
               both Houses. Except in the case of Money Bills, both Houses
D              enjoyed equal powers; and difference between the two Houses
               were to be settled by a majority vote in a joint sitting of both
               Houses convened by the President… Money Bills were defined
               in the Draft as comprising Bills proposing the imposition or
               increase of any tax, regulating the borrowing of money by the
               Government of India or the giving of financial guarantees, or
E              declaring any item of expenditure as ‘‘charged” on the revenues,
               i.e. placing it outside the vote of the House of the People. The
               general principle approved by the Constituent Assembly was that
               financial control over the executive would’ be - exercised by the
               House of the People. Accordingly the Draft provided that Money
F              Bills could originate only 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
G              both Houses in the form in which it was passed’ by the House of
               the People” and submitted to the President for his assent’.”85
      83
         B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
         Public Administration (1968), at page 420
      84
         Ibid
      85
H        Ibid, at pages 427-428
     JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                       801
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                       D. Y. CHANDRACHUD,

       66. The draft prepared by the Constitutional Advisor provided a                     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 190086 and Article 22 of the Constitution of
Ireland 1937.87 Article 75 of this draft of the Constitution provided that
“if any question arises whether a Bill is a ‘money bill’ or not, the decision
                                                                                           B
of the Speaker of the House of the People thereon shall be final.” 88
Neither Section 37 of the Government of India Act 1935 nor Section 53
of the Commonwealth of Australia Constitution Act 1900 has a similar
provision which accords legal finality to the decision of the Speaker. The
draft provision was similar to Article 22 of the Constitution of Ireland
1937, which provides:                                                                      C
         “1. The Chairman of Dáil Éireann89 shall certify any Bill
         which, in his opinion, is a Money Bill to be a Money Bill,
         and his certificate shall, subject to the subsequent
         provisions of this section, be final and conclusive.
         2. Seanad Éireann90, by a resolution, passed at a sitting at which                D
         not less than thirty members are present, may request the
         President to refer the question whether the Bill is or is not a
         Money Bill to a Committee of Privileges.
86
   The said provision provides: “Powers of the Houses in respect of legislation.
   Proposed laws appropriating revenue or moneys, or imposing taxation, shall not          E
   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 demand
   or payment or appropriation of fees for licences, or fees for services under the
   proposed law. The Senate may not amend proposed laws imposing taxation, or
   proposed laws appropriating revenue or moneys for the ordinary annual services of
   the Government. The Senate may not amend any proposed law so as to increase any         F
   proposed charge or burden on the people. The Senate may at any stage return to the
   House of Representatives any proposed law which the Senate may not amend,
   requesting, by message, the omission or amendment of any items or provisions
   therein. And the House of Representatives may, if it thinks fit, make any of such
   omissions or amendments, with or without modifications. Except as provided in this
   section, the Senate shall have equal power with the House of Representatives in
   respect of all proposed laws.”                                                          G
87
   B Shiva Rao, The Framing of India’s Constitution: Selected Documents, Indian
   Institution of Public Administration (2012), at page 32, as quoted in Pratik Datta,
   Shefali Malhotra & Shivangi Tyagi, Judicial Review and Money Bills, NUJS Law
   Review(2017)
88
   Ibid
89
   Lower House in Ireland
90
   Upper House in Ireland                                                                  H
802                SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A                3. If the President after consultation 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 Dáil
                 Éireann and of Seanad Éireann 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
B
                 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
C                which the Bill was sent to Seanad Éireann.
                 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 Éireann, or if the
D                Committee of Privileges fails to report within the time
                 hereinbefore specified the certificate of the Chairman of Dáil
                 Éireann 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
E     finality of the certification of the Speaker on whether a Bill is a Money
      Bill. The Irish model of dispute resolution, which provided for a mechanism
      to review the Speaker’s certification, was not adopted.
      Subsequently, in its report submitted to the President of the Constituent
      Assembly on 5 December 1947, the Expert Committee on Financial
F     Provisions suggested an amendment to the draft provision, to the effect
      that:
                 “When a Money Bill is sent from the Lower House to the Upper,
                 a certificate of the Speaker of the Lower House saying that it is
                 a Money Bill should be attached to, or endorsed on, the bill and a
                 provision to that effect should be made in the Constitution on the
G
                 lines of the corresponding provision in the Parliament Act, 1911.
                 This will prevent controversies about the matter outside
                 the Lower House.”91 (Emphasis supplied)

      91
           B Shiva Rao, The Framing of India’s Constitution: Selected Documents, Indian
H          Institution of Public Administration, at page 281
     JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                   803
                [DR.[ASHOK   BHUSHAN, J.] J.]
                     D. Y. CHANDRACHUD,

Certification of any Bill by the Speaker of the Lower House as a Money                 A
Bill, was envisaged for procedural simplicity to avoid causing confusion
in the Upper House of Parliament.
        68. The final provision which has assumed the form of Article
110 of the Constitution, does not contain the exact language used in the
Act of 1911. The 1911 Act of the British Parliament consciously excluded               B
judicial review of the certificate of the Speaker of the House of
Commons. The intention of the British Parliament is clear from the
specific language used in Section 3 of the Act. Section 3 accords finality
to the decision of the Speaker by providing that any certificate of the
Speaker of the House of Commons “shall be conclusive for all purposes,
and shall not be questioned in any court of law”. The certification of the             C
Speaker is both conclusive and immune from judicial review. The framers
of the Indian Constitution did not adopt this language. Rather, they chose
to adopt the phrase “shall be final”. The phrase used in the Act of 1911
expressly excluded courts from exercising their power of judicial review
over the decision of the Speaker of the House of Commons. This                         D
language was used in the 1911 Act to put an end to the constitutional
skirmishes experienced by the House of Lords and the House of
Commons in Britain for more than five hundred years, leading to the
enactment of the 1911 Act.92 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                  E
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                      F
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                     G
Kalpana Mehta v Union of India93 has, while noticing this distinction,
held:
92
   Pratik Datta, Shefali Malhotra & Shivangi Tyagi, Judicial Review and Money Bills,
   NUJS Law Review(2017)
93
   (2018) 7 SCC 1
                                                                                       H
804                SUPREME COURT REPORTS                                  [2018] 8 S.C.R.


A                “…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 mandates
                 that every institution of governance is subject to the norms
                 embodied in the constitutional text. The Constitution does not
B
                 allow for the existence of absolute power in the institutions which
                 it creates. Judicial review as a part of the basic features of the
                 Constitution is intended to ensure that every institution acts within
                 its bounds and limits.”94
             70. The purpose of judicial review is to ensure that constitutional
C     principles prevail in interpretation and governance. Institutions created
      by the Constitution are subject to its norms. No constitutional institution
      wields absolute power. No immunity has been attached to the certificate
      of the Speaker of the Lok Sabha from judicial review, for this reason.
      The Constitution makers have envisaged a role for the judiciary as the
D     expounder of the Constitution. The provisions relating to the judiciary,
      particularly those regarding the power of judicial review, were framed,
      as Granville Austin observed, with “idealism”95. Courts of the country
      are expected to function as guardians of the Constitution and its values.
      Constitutional courts have been entrusted with the duty to scrutinize the
      exercise of power by public functionaries under the Constitution. No
E     individual holding an institutional office created by the Constitution can
      act contrary to constitutional parameters. Judicial review protects the
      principles and the spirit of the Constitution. Judicial review is intended as
      a check against arbitrary conduct of individuals holding constitutional
      posts. It holds public functionaries accountable to constitutional duties.
F     If our Constitution has to survive the vicissitudes of political
      aggrandisement and to face up to the prevailing cynicism about all
      constitutional institutions, notions of power and authority must give way
      to duties and compliance with the rule of law. Constitutional institutions
      cannot be seen as focal points for the accumulation of power and privilege.
      They are held in trust by all those who occupy them for the moment.
G     The impermanence of power is a sombre reflection for those who occupy
      constitutional offices. The Constitution does not contemplate a
      debasement of the institutions which it creates. The office of the Speaker
      94
           Ibid, at para 227
      95
           Granville Austin, The Indian Constitution: Cornerstoneof a Nation, Oxford University
H          Press (1966), at page 205
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                805
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

of the House of People, can be no exception. The decision of the Speaker          A
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   B
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           C
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           D
Ireland to refer the question of whether a Bill is a Money Bill, to a
Committee of Privileges. If the President refers the question to this
Committee, the decision of the Committee stands “final and conclusive”.
The members of the Constituent Assembly did not adopt this mechanism.
Absence of this mechanism does not mean that the decision of the
Speaker of the Lok Sabha cannot be subject to checks and balances, of             E
which judicial review is an indispensable facet. The Speaker has to act
within the domain, which the Constitution accords to the office of the
Speaker. The power conferred on the Speaker of the Lok Sabha cannot
be exercised arbitrarily, for it could damage the scheme of the
Constitution. Judicial review is the ultimate remedy to ensure that the           F
Speaker does not act beyond constitutional entrustment.
       72. The scope of the phrase “shall be final” can also be understood
by looking at the proceedings of the Constituent Assembly. The
constitutional foundation of Article 110(4) is based upon a suggestion of
the Expert Committee on Financial Provisions that when a Money Bill is            G
transmitted from the Lower House to the Upper House, it should be
endorsed by the Speaker’s certificate, so as to prevent any controversy
“about the matter outside the Lower House”. Therefore, the finality
provided to the decision of the Speaker as to whether a Bill is a Money
Bill or not, is aimed at avoiding any controversy on the issue in the Rajya
                                                                                  H
806              SUPREME COURT REPORTS                                     [2018] 8 S.C.R.


A     Sabha and before the President. Had it been intended to prevent the
      court from adjudicating upon the validity of the decision of the Speaker,
      the language of the Article would have made it explicit. Where a
      constitutional provision evinces a specific intent to exclude judicial review,
      clear words to that effect are used. Articles 243O(a)96, 243ZG(a)97 and
      329(a) specifically use the phrase - “shall not be called in question in any
B
      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
C              question in any court.” (Emphasis supplied)
            73. In N P Ponnuswami v Returning Officer, Namakkal
      Constituency, Namakkal, Salem District98,a six judge Bench of this
      Court, while construing the provisions of Article 329, compared it to the
      preceding Articles, and held thus:
D
               “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
E              conceded at the Bar that the effect of this difference in language
               is that whereas any law made by Parliament under article 327,
               or by the State Legislature under article 328, cannot exclude the
               jurisdiction of the High Court under article 226 of the Constitution,
               that jurisdiction is excluded in regard to matters provided for in
F              article 329.”99

      96
         Article 243O(a), which is a part of the chapter on Panchayats, provides:
         “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 243K, shall not be called in question in
         any court.”
G     97
         Article 243ZG(a), which is a part of the chapter on Municipalities, provides:
         “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 243ZA shall not be called in question in
         any court.”
      98
         1952 SCR 218
      99
H        Ibid, at para 5
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                              807
               [DR.[ASHOK
                     D. Y. CHANDRACHUD,
                            BHUSHAN, J.] J.]

       74. In order to understand the scope of the finality attached to                         A
the Speaker’s decision under Article 110(3), it would be useful to analyse
how in the case of other constitutional provisions, the words “shall be
final” have been interpreted by this Court. Articles 217(3) 100, 311(3)101
and paragraph 6(1) of the Tenth Schedule102 contain the phrase “shall
be final”. In Union of India v Jyoti Prakash Mitter103, this Court
                                                                                                B
held that it can examine the legality of an order passed by the President
on the determination of the age of a Judge of the High Court under
Article 217(3) of the Constitution. The six judge Bench held:
          “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.                           C
          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                                    D
          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.”104                                                    E

100
    Article 217 (3) states: “If any question arises as to the age of a Judge of a High Court,
the question shall be decided by the President after consultation with the Chief Justice
of India and the decision of the President shall be final.”
101
      Article 311(3) states: “If, in respect of any such person as aforesaid, a question        F
arises whether it is reasonably practicable to hold such inquiry as is referred to in clause
(2), the decision thereon of the authority empowered to dismiss or remove such person
or to reduce him in rank shall be final.”
102
      Paragraph 6(1) states “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:                                                                    G
      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.”
103
    (1971) 1 SCC 396
104
      Ibid, at page 397
                                                                                                H
808             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     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 Patel105.
      The Court held that the finality given to the decision of the disciplinary
B     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
C     of this Court in Kihoto Hollohan v Zachillhu106. The Constitution Bench
      held that the power vested in the Speaker or the Chairman under the
      Schedule, is a judicial power, and was amenable to judicial review:
              “111…That Paragraph 6(1) of the Tenth Schedule, to the extent
              it seeks to impart finality to the decision of the Speakers/Chairmen
D             is valid. But the concept of statutory finality embodied in
              Paragraph 6(1) does not detract from or abrogate judicial
              review under Articles 136, 226 and 227 of the Constitution
              in so far as infirmities based on violations of constitutional
              mandates, mala fides, non-compliance with Rules of
              Natural Justice and perversity, are concerned.” 107
E             (Emphasis supplied)
      The Bench had also clarified that:
              “101…The principle that is applied by the courts is that in spite
              of a finality clause it is open to the court to examine whether the
F             action of the authority under challenge is ultra vires the powers
              conferred on the said authority. Such an action can be ultra vires
              for the reason that it is in contravention of a mandatory provision
              of the law conferring on the authority the power to take such an
              action. It will also be ultra vires the powers conferred on the
              authority if it is vitiated by mala fides or is colourable exercise of
G             power based on extraneous and irrelevant considerations...”108


      105
           (1985) 3 SCC 398
      106
          (1992) Supp (2) SCC 651
      107
          Ibid, at page 711
      108
H         Ibid, at page 708
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                809
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

Undoubtedly, the finality clauses contained in Article 217(3), 311(3) and         A
in paragraph 6(1) of the Tenth Schedule were held not to exclude judicial
review since the essential nature of the power is judicial. A constitutional
function is entrusted to the Speaker to certify a Bill as a Money Bill
under Article 110(3), to which the attributes of a judicial power do not
apply. Indeed, the power which is entrusted to the Speaker under Article
                                                                                  B
110(3) is integral to the legislative process. But, the fact that the authority
which a constitutional functionary exercises is not of a judicial character,
is not sufficient to lead to the conclusion that a finality clause governing
the exercise of that power makes it immune from judicial review. Where
the entrustment of the power is subject to the due fulfilment of
constitutional norms, the exercise of jurisdiction is amenable to judicial        C
review, to the extent necessary to determine whether there has been a
violation of a constitutional mandate. The nature and extent of judicial
review would undoubtedly vary from a situation 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
                                                                                  D
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           E
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           F
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. Nothing can be as divorced from
constitutional principle as these normative foundations of colonial law
and history. The notion that power is absolute is inconsistent with a             G
Constitution which subjects the entrustment of functions to public
functionaries to the restraints which accompany it. Our law must
recognise the need to liberate its founding principles from its colonial
past. The Court should not readily accept the notion that the authority
vested in a constitutional functionary is immune from judicial review. In         H
810                SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     the absence of a specific exclusion of judicial review, none can be implied.
      Moreover, any exclusion of judicial review must be tested on the anvil of
      its functionality. A specific exclusion of judicial review, in order to be
      valid, must serve a constitutional function. The test of functionality must
      relate to whether an exclusion of review is necessary to fulfil the
      overarching need for the proper discharge of a constitutional role.
B
      Exclusion of review, to be valid, must fulfil the requirement of a
      constitutional necessity. Its purpose cannot be to shield an excess of
      power from being questioned before the Court. Nor is the fact that a
      power is vested in a high functionary a ground to shield it from scrutiny.
      The ultimate test is whether the exclusion of judicial review is express
C     and specific and, whether such an exclusion is designed to achieve a
      constitutional purpose that meets the test of functionality, assessed in
      terms of a constitutional necessity. In the seventh decade of the republic,
      our interpretation of the Constitution must subserve the need to liberate
      it from its colonial detritus.
D     This approach was adopted by a seven judge Bench of this Court in
      Krishna Kumar Singh v State of Bihar109. While interpreting the
      ordinance making power of the Governor, the Court held that the
      interpretation of the Constitution must be “carefully structured” to ensure
      that the power remains what the framers of our Constitution intended it
      to be. The Bench held:
E
                 “91…The issue which needs elaboration is whether an ordinance
                 which by its very nature has a limited life can bring about
                 consequences for the future (in terms of the creation of rights,
                 privileges, liabilities and obligations) which will enure beyond the
                 life of the ordinance. In deciding this issue, the court must
F                adopt an interpretation which furthers the basic
                 constitutional 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
G                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
      109
H           (2017) 3 SCC 1
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             811
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

            to create binding effects for posterity would set a dangerous         A
            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...”110 (Emphasis supplied)
                                                                                  B
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     C
            be called in question on the ground of any alleged irregularity of
            procedure.
            (2) No officer or member of Parliament in whom powers are
            vested by or under this Constitution for regulating procedure or
            the conduct of business, or for maintaining order, in Parliament      D
            shall be subject to the jurisdiction of any court in respect of the
            exercise by him of those powers.”
This Court must deal with the question whether the Speaker’s decision
under Article 110(3) is protected by Article 122. Article 122 prohibits
courts from examining the validity of any proceedings in Parliament on            E
the ground that there was “any alleged irregularity of procedure”. The
content of the expression “procedure” referred to in the Article, is
indicated in Article 118 of the Constitution. The marginal note to Article
118 provides for “Rules of procedure”. Article 118 provides as follows:
            “118. (1) Each House of Parliament may make rules for                 F
            regulating, subject to the provisions of this Constitution,
            its procedure and the conduct of its business. (2) Until rules
            are made under clause (1), the rules of procedure and standing
            orders in force immediately before the commencement of this
            Constitution with respect to the Legislature of the Dominion of
                                                                                  G
            India shall have effect in relation to Parliament subject to such
            modifications and adaptations as may be made therein by the
            Chairman of the Council of States or the Speaker of the House
            of the People, as the case may be. (3) The President, after
110
      Ibid, at pages 76-77
                                                                                  H
812                SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A                consultation with the Chairman of the Council of States and the
                 Speaker of the House of the People, may make rules as to the
                 procedure with respect to joint sittings of, and communications
                 between, the two Houses.
                 (4) At a joint sitting of the two Houses the Speaker of the House
B                of the People, or in his absence such person as may be
                 determined by rules of procedure made under clause (3), shall
                 preside.” (Emphasis supplied)
             77. Articles 118 to 122 are covered under the rubric of the general
      heading- “Procedure Generally”. Article 118 provides for rules to be
C     made by each House of Parliament for regulating the procedure and
      conduct of its business. The Article subjects these contemplated rules to
      the provisions of the Constitution. The provision does not indicate that
      these rules will stand above the Constitution. They are, on the contrary,
      subject to the Constitution. The rules framed under Article 118, are
      procedural in nature. The procedure contemplated under Articles 118 to
D     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
E     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
F     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 1964111, a seven judge
G     Bench of this Court brought home that distinction in the context of Article
      212(1) with the following observations:
                 “61…Article 212(2) confers immunity on the officers and
                 members of the Legislature in whom powers are vested by or
      111
            AIR 1965 SC 745
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             813
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

          under the Constitution for regulating procedure or the conduct          A
          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. Art. 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
                                                                                  B
          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 a court of law, though such
          scrutiny is prohibited if the complaint against the
          procedure is no more than this that the procedure was                   C
          irregular...” (Emphasis supplied)
In Ramdas Athawale v Union of India112 (“Ramdas Athawale”), a
Constitution Bench of this Court extended the above formulation to Article
122 of the Constitution:
          “36.This Court Under Article 143, Constitution of India, In             D
          re (Special Reference No. 1 of 1964) [AIR 1965 SC 745 :
          (1965) 1 SCR 413] (also known as Keshav Singh case [AIR
          1965 SC 745 : (1965) 1 SCR 413] ) while construing Article
          212(1) observed that it may be possible for a citizen to call in
          question in the appropriate Court of law, the validity of any           E
          proceedings inside the Legislature 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 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.    F
          The same principle would equally be applicable in the matter of
          interpretation of Article 122 of the Constitution.”113
A Constitution Bench of this Court reaffirmed the distinction between a
“procedural irregularity” and an “illegality” in Raja Ram Pal v Hon’ble
Speaker, Lok Sabha114 (“Raja Ram Pal”). The Bench held that courts                G
are not prohibited from exercising their power of judicial review to examine
any illegality or unconstitutionality in the procedure of Parliament:
112
      (2010) 4 SCC 1
113
      Ibid, at pages 13-14
114
      (2007) 3 SCC 184                                                            H
814               SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A               “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
B
                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…115
                398…the Court will decline to interfere if the grievance brought
C               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.”116
      The Court distinguished the constitutional background in India from that
D     of England, holding that while England has adopted a regime of exclusive
      parliamentary dominance, India is governed by a system of checks and
      balances provided in the Constitution:
                “366.The touchstone upon which Parliamentary actions within
                the four-walls of the Legislature were examined was both the
E               constitutional as well as substantive law. The proceedings
                which may be tainted on account of substantive illegality
                or unconstitutionality, as opposed to those suffering from
                mere irregularity thus cannot be held protected from
                judicial scrutiny by Article 122(1) in as much as the broad
F               principle laid down in Bradlaugh [(1884) 12 QBD 271]
                acknowledging exclusive cognizance of the Legislature in
                England has no application to the system of governance
                provided by our Constitution wherein no organ is sovereign
                and each organ is amenable to constitutional checks and
                controls, in which scheme of things, this Court is entrusted
G               with the duty to be watchdog of and guarantor of the
                Constitution.”117 (Emphasis supplied)

      115
            Ibid, at page 359
      116
            Ibid, at page 362
      117
            Ibid, at page 350
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                          815
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

The principle which emerges from these decisions is that the decision of       A
the Speaker is amenable to judicial review, if it suffers from illegality or
from a violation of constitutional provisions.
       79. The Attorney General advanced the submission that this Court
has on previous occasions refrained from scrutinizing the decision of the
Speaker on whether a Bill is a Money Bill. Those decisions require             B
discussion for adjudicating the present case. In Mangalore Ganesh
Beedi Works v State of Mysore118(“Mangalore Beedi”), a new
system of coinage was introduced by amending the Indian Coinage Act.
Under the new system, while one rupee was divided into a hundred
naya paisas, the old legal tender of sixteen annas or sixty four pice
remained legal tender equivalent to one hundred naya paisas. The               C
appellant, which was a firm registered under the Mysore Sales Tax Act,
had to pay an additional amount as sales tax due to change in the currency.
It was argued that by the substitution of 2 naya paisas (the new currency)
in place of 3 pies (the old currency) as tax, there was a change in the tax
imposed by the Mysore Sales Tax Act, which could only have been done           D
by passing a Money Bill under Articles 198, 199 and 207 of the Constitution
and since no Money Bill was introduced or passed for the enhancement
of the tax, the tax was illegal and invalid. The contention, therefore, was
that the procedure envisaged for passing a Money 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    E
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      F
Bench also remarked:
         “5…Even assuming that it is a taxing measure its validity cannot
         be challenged on the ground that it offends Arts. 197 to 199 and
         the procedure laid down in Art. 202 of the Constitution. Article
         212 prohibits the validity of any proceedings in a legislature of a   G
         State from being called in question on the ground of any alleged
         irregularity of procedure and Art. 255 lays down that requirements
         as to recommendation and previous sanction are to be regarded
         as matters of procedure only...”
118
      1963 Supp (1) SCR 275
                                                                               H
816              SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     The Court having found that a substitution of coinage did not result in an
      enhancement of tax, Article 199 was not attracted. The legislative
      measure was not a Money Bill. Once that was the case, the subsequent
      observations (extracted above) proceeded on an assumption: that even
      if it were a taxing measure, it would be saved by Article 255. The court
      having held that no enhancement of tax was involved in a mere substitution
B
      of coinage, the alternative hypothesis is not a part of the ratio and was
      unnecessary. The ratio was that substitution of a new coinage did not
      amount to a Money Bill. The decision of the Constitution Bench in
      Mangalore Beedi dealt with the contention that a Money Bill was
      unconstitutionally passed as an ordinary Bill. The Bench held that
C     substitution of coinage did not make it a Money Bill. The decision contains
      a general observation regarding the immunity of proceedings in a state
      legislature. A scholarly article119 has correctly referred to the general
      remarks made in Mangalore Beedi as unnecessary and not the ratio
      since the issue was already decided on merits, by holding that the
      substitution of coinage was not an enhancement of tax.
D
             80. A three judge Bench of this Court in Mohd Saeed Siddiqui
      v State of Uttar Pradesh120 (“Mohd Saeed Siddiqui”) dealt with the
      constitutional validity of the Uttar Pradesh Lokayukta and Up-Lokayuktas
      (Amendment) Act, 2012. Section 5(1) of the unamended Act provided a
      term of six years for the Lokayukta. Section 5(3) provided that on ceasing
E     to hold office, the Lokayukta or Up-Lokayukta shall be ineligible for
      further appointment. The new State government, which came in office,
      introduced a Bill which was passed as the Uttar Pradesh Lokayukta and
      Up-Lokayuktas (Amendment) Act, 2012, by which the term of the U.P.
      Lokayukta and Up-Lokayukta was extended from six years to eight
F     years or till the successor enters upon office. The Amendment Act also
      limited the ineligibility of the Lokayuktas or Up-Lokayuktas for further
      appointment under the Government of Uttar Pradesh. The Amendment
      Act was challenged on the ground that it was passed as a Money Bill
      when, on the face of it, it could never have been called a Money Bill
      under Article 199 of the Constitution. The Bench rejected the petition
G     holding that the question “whether a Bill is a Money Bill or not can be
      raised only in the State Legislative Assembly by a member thereof when

      119
            Pratik Datta, Shefali Malhotra & Shivangi Tyagi, Judicial Review and Money
            Bills, Vol 10, NUJS Law Review (2017).
      120
H           (2014) 11 SCC 415
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             817
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

the Bill is pending in the State Legislature and before it becomes an             A
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             B
          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       C
          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.”                                                              D
The judgment also made a reference to the seven judge Bench decision
in PanditMSM Sharma v DrShree Krishna Sinha 121 (“MSM
Sharma”).
The “proceedings of the Legislature” were held to include “everything
said or done in either House” in the transaction of parliamentary business.       E
Relying upon Articles 212 and 255, the Bench accorded finality to the
decision of the Speaker:
          “43. As discussed above, 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           F
          procedure of the State Legislature be questioned by virtue of
          Article 212. Further, as noted earlier, Article 255 also shows that
          under the Constitution the matters of procedure do not render
          invalid an Act to which assent has been given to by the President
          or the Governor, as the case may be. Inasmuch as the Bill in            G
          question was a Money Bill, the contrary contention by the
          Petitioner against the passing of the said Bill by the Legislative
          Assembly alone is unacceptable.”122
121
      AIR 1960 SC 1186
122
      Mohd Saeed Siddiqui, Ibid, at page 430                                      H
818               SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     Making a passing reference to the decision of the Constitution Bench in
      Raja Ram Pal, the Bench opined that even if it is established that there
      was some infirmity in the procedure in the enactment of the Amendment
      Act, it will be protected by Article 255 of the Constitution.
              81. Subsequently, a two judge Bench of this Court in Yogendra
B     Kumar Jaiswal v State of Bihar123 (“Yogendra Kumar”) dealt with
      the constitutional validity of the Orissa Special Courts Act, 2006. The
      law was enacted by the State legislature, keeping in view the accumulation
      of properties disproportionate to their known sources of income by persons
      who have held or hold high political and public offices. The legislature
      provided special courts for speedy trial of certain classes of offences
C     and for confiscation of properties. The appellants, who were public
      servants and facing criminal cases, challenged the Act on the ground
      that it was introduced in the State Assembly as a Money Bill though it
      did not have any characteristics of a Money Bill under Article 199 of the
      Constitution. The Court dismissed the petitions, following the decision in
D     Mohd Saeed Siddiqui.It held that:
                “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 in Mohd. Saeed Siddiqui
                (supra), comes within the concept of “irregularity” and it does
E               come with the realm of substantiality. What 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
F               submission so assiduously urged by the learned Counsel for the
                Appellants.”124
      Special Reference No. 1 of 1964 was distinguished in Yogendra
      Kumar.
      Article 255 provides:
G
                “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—
      123
            (2016) 3 SCC 183
H     124
            Ibid, at page 229
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             819
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

          (a) where the recommendation required was that of the Governor,         A
          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.”                           B

        82. Article 255 speaks about a situation where a “recommendation
or previous sanction” is required to be given by the Governor, Rajpramukh
or, as the case may be, by the President. The absence of a recommendation
or previous sanction will not invalidate the law, where the Act has received
the assent of the Governor or the President. Subsequent assent, in other          C
words, cures the absence of recommendation or sanction. Article 255 is
in no way related to the decision or certificate of the Speaker of the Lok
Sabha or of the State Legislative Assembly on whether a Bill is a Money
Bill. Moreover, Article 255 does not apply to Articles 110 for the simple
reason that the latter does not embody either a previous sanction or              D
recommendation. Article 255 does not envisage superseding the role of
the Upper House of Parliament or the State Legislature. Mohd Saeed
Siddiqui proceeds on an erroneous understanding of Article 255. Mohd
Saeed Siddiqui was followed in Yogendra Kumar. These two
judgments cite the same three articles — Articles 199,125 212,126 and
255, to refrain from questioning the conduct of the Speaker, without              E
noticing that Article 255 does not apply there.
Further, MSM Sharma, which was referred in Mohd Saeed Siddiqui
was discussed in the Special Reference to hold that the validity of any
proceedings in a legislative chamber can be questioned if such proceedings
suffer from illegality. The consistent thread which emerges from the              F
judgments in Special Reference, Ramdas Athawale and Raja Ram
Pal is that the validity of proceedings in Parliament or a State Legislature
can be subject to judicial review on the ground that there is an illegality
or a constitutional violation. Moreover, the judgment in Yogendra Kumar
followed Mohd Saeed Siddiqui. Siddiqui was based on an erroneous                  G
understanding of Mangalore Beedi.The decision of the Speaker under
Articles 110(3) and 199(3) is not immune from judicial review.


125
      Corresponding provision for the Union is Article 110 of the Constitution.
126
      Corresponding provision for the Union is Article 122 of the Constitution.   H
820               SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     The three judge Bench decision in Mohd Saeed Siddiqui and the two
      judge Bench decision in Yogendra Kumar are overruled.
             83. Barring judicial review of the Lok Sabha Speaker’s decision
      would render a certification of a Bill as a Money Bill immune from
      scrutiny, even where the Bill does not, objectively speaking, deal only
B     with the provisions set out in Article 110(1). The decision of the Speaker
      of the 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
C     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
D     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.127 The
E     phenomenon of the bicameral system has two different historic origins.
      It was first established in England, and later in the US.128 Both these
      models have been replicated across the globe.
             85. Britain developed some of the earliest institutional practices
      that came to be emulated through the Western world. A separate powerful
F     legislature was initiated when King John in 1215 gave a written
      commitment to seek the consent of Parliament to levy taxes to which he
      was entitled by feudal prerogative. Over the next five centuries, the
      British Parliament was transformed from an institution summoned at the
      desire of the ruler to one which met on regular occasions to develop
      policy inclinations independent of the wishes of the ruler.129 In the
G
      127
            Fathali M. Moghaddam, The SAGE Encyclopaedia of Political Behaviour (2017).
      128
            Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry
            of the Interior and Kingdom Relations- Netherlands (2015), at page 7
      129
            Abhinay Muthoo & Kenneth A. Shepsle, The Constitutional Choice of
            Bicameralism, in Institutions and Economic Performance (Elhanan Helpman ed.),
H           Harvard University Press (2008), at pages 251-252
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                 821
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

fourteenth century, Parliament was divided into two chambers: one                     A
chamber (the House of Lords) in which debate took place with the
feudal lords and a second chamber (the House of Commons) where the
citizens were represented.130 The upper chamber of the British Parliament,
the Lords, comprised of hereditary peers (whose number varied with
the discretion of the King to create them). The lower chamber, the
                                                                                      B
Commons, represented individuals satisfying a substantial property
requirement. The two chambers in Britain reflected a kind of class
division.Before the beginning of the eighteenth century, several factors
such as civil war, regicide, experimentation with a republic, and the
restoration of the titular monarch caused power to be permanently shifted
from the King to Parliament.131                                                       C
Around the same time, the British colonies in North America were crafting
institutions of their own. Colonial legislatures were being conceptualized
on similar lines, with some exceptions, to British Parliament. The
Constitution for the newly formed United States adopted a bicameral
system.132 The legislature in the United States was innovative, for it                D
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                    E
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              F
two differently composed chambers was ultimately chosen to be the
only way out of the deadlock.133 The rationale for a bicameral legislature
comprising of a directly elected Lower House and an indirectly elected
130
      Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry
      of the Interior and Kingdom Relations- Netherlands (2015), at page 7            G
131
      Abhinay Muthoo & Kenneth A. Shepsle, The Constitutional Choice of
      Bicameralism, in Institutions and Economic Performance (Elhanan Helpman ed.),
      Harvard University Press (2008), at page 252
132
      Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry
      of the Interior and Kingdom Relations- Netherlands (2015), at page 8
133
      Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry
      of the Interior and Kingdom Relations- Netherlands (2015), at page 7            H
822               SUPREME COURT REPORTS                                 [2018] 8 S.C.R.


A     Upper House was best articulated by James Madison, in the Federalist
      Papers:
                “First… a senate, as a second branch of the legislative assembly,
                distinct from, and dividing the power with, a first, must be in all
                cases a salutary check on the government. It doubles the security
B               to the people, by requiring the concurrence of two distinct bodies
                in schemes of usurpation or perfidy, where the ambition or
                corruption of one would otherwise be sufficient…
                Second. The necessity of a senate is not less indicated by the
                propensity of all single and numerous assemblies to yield to the
C               impulse of sudden and violent passions, and to be seduced by
                factious leaders into intemperate and pernicious resolutions…
                Third. Another defect to be supplied by a senate lies in a want
                of due acquaintance with the objects and principles of legislation.
                It is not possible that an assembly of men called for the most
D               part from pursuits of a private nature, continued in appointment
                for a short time, and led by no permanent motive to devote the
                intervals of public occupation to a study of the laws, the affairs,
                and the comprehensive interests of their country, should, if left
                wholly to themselves, escape a variety of important errors in the
                exercise of their legislative trust… A good government implies
E               two things: first, fidelity to the object of government, which is the
                happiness of the people; secondly, a knowledge of the means by
                which that object can be best attained…
                Fourth. The mutability in the public councils arising from a rapid
                succession of new members, however qualified they may be,
F               points out, in the strongest manner, the necessity of some stable
                institution in the government…”134
      Madison conceptualized that the second chamber would fulfil significant
      roles: (a) it would provide the certainty that the government will not
      neglect its obligations to its constituents, as the chamber provides an
G     extra check on it; (b) it can curb the actions of the other chamber if it
      gives into the urge to follow ‘sudden and pronounced sentimental
      reactions’; (c) it can meet the need for expertise in the framing of laws
      and the interests of the country, and thus help to avoid legislative mistakes;
      134
            James Madison, The Federalist No. 62 – The Senate, The Federalist Papers (1788),
H           available at http://www.constitution.org/fed/federa62.html
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                        823
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

and (d) it can be a factor for stability that ensures continuity in the                      A
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                 B
structure acts as a control over the tyranny of a majority. 135 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.                               C
          Bicameralism can thus be understood as an antidote to the
          manipulative power of the convenor, or agenda setter, when faced
          with cycling preferences.”136
A study137 commissioned by the Dutch Ministry of the Interior and
Kingdom Relations analysed the design of the bicameral system in several                     D
countries. The study consulted constitutional texts and literature on the
evolution of bicameralism and came to the finding that:
          “Historically, the creation of bicameral systems, both in the federal
          and the aristocratic variant, always was a concession to those
          (states or estates) who risked losing power in the new setting. In                 E
          emerging democracies, and up until the present day, the choice
          of a bicameral system appears as a means of dispelling fear
          about the consequences of democratisation and reconciling
          established elites with the democratisation process. In developed
          democracies, the rationale of a bicameral system is now sought
          primarily in the possibility of combining different systems of                     F
          representation (particularly in federal systems) and in the
          possibility of reconsideration by a different chamber in the
          legislative, making it possible to avoid making mistakes and
          enhancing both the quality and the stability of the legislation. In
          majority systems of the Westminster model - where the                              G
135
      William H. Riker, The Justification of Bicameralism, International Political Science
      Review (1992), Vol. 13, Issue 1, at pages 101–16.
136
      Saul Levmore, Bicameralism: When Are Two Decisions Better than One?,
      International Review of Law and Economics (1992), Vol. 12, at pages 147-148.
137
      Betty Drexhage, Bicameral Legislatures: An International Comparison, Ministry
      of the Interior and Kingdom Relations- Netherlands (2015).                             H
824               SUPREME COURT REPORTS                                 [2018] 8 S.C.R.


A               government is part of the lower house and it tends to have a
                stable majority - a senate moreover is sometimes ascribed the
                role of giving more independent input into the parliamentary work,
                less determined by party discipline, and of paying more attention
                to the interests of minorities. A bicameral system is, for that
                reason, sometimes recommended as a means to protect minorities
B
                against a tyranny of the majority… Finally, a bicameral system
                may also increase efficiency because it is possible to divide the
                legislative workload between two chambers. That can be the
                case when the two chambers absorb a sort of division of labour
                (e.g. an emphasis on technical legal quality in the senate). In
C               many bicameral systems, moreover, it can be decided to put bills
                to either house, and the senate also has a right of initiative.”138
              87. The importance of the second chamber increases when there
      is no single party rule in Parliament. Governments that lack Upper-House
      majority support find it difficult to pass Bills.139 Elliot Bulmer notes
D     pertinently 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”.140
E     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”.141 Quoting from the work of various scholars, he
      observes:

F               “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
      138
            Ibid, at pages 11-12
      139
            James N. Druckman & Michael F. Thies, The Importance of Concurrence: The
G
            Impact of Bicameralism on Government Formation and Duration, American
            Journal of Political Science(2002), Vol. 46, No. 4, at pages 760-771.
      140
            Elliot Bulmer, Bicameralism, International Institute for Democracy and Electoral
            Assistance (2017), at page 4
      141
            James R. Rogers, The Advantage of Second Chambers in Republican Legislatures:
            An Informational Theory,at page 6, available at https://ecpr.eu/Filestore/
H           PaperProposal/beb20221-c2c5-4475-9b9f-74bb3f1512a7.pdf
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             825
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

         representation are significantly different in the two houses, there      A
         would seem to be little excuse for the two-house system”…
         Because two “congruent” chambers would ostensibly not
         significantly affect policy outcomes, Lijphart described bicameral
         systems with congruent chambers as “weak” forms of
         bicameralism…”142
                                                                                  B
       88. Bicameralism, when entrenched as a principle in a
constitutional democracy, acts as a check against the abuse of power by
constitutional means or its use in an oppressive manner. As a subset of
the constitutional principle of division of power, bicameralism is mainly a
safeguard against the abuse of the constitutional and political process. A
bicameral national parliament can hold the government accountable and             C
can check or restrain the misuse of government power. Among its other
roles is that of representing local state units, acting as a body of expert
review, and providing representation for diverse socio-economic interests
or ethno-cultural minorities.
While deliberating over the necessity of having a second chamber, the             D
Constituent Assembly had the benefit of examining the constitutional
history of several other nations. The constitutional advisor, B N Rau,
found the issue of second chambers to be “one of the most vexing
questions of political science”.143 Under colonial rule, bicameralism had
already been introduced. The first bicameral legislature as the national          E
assembly for India was established by the Government of India Act
1919. The Government of India Act, 1935 had created an Upper House
in the federal legislature which consisted of members elected by the
provincial legislatures as well as representatives sent by numerous princely
states that were not under the direct control of the British government.
The 1935 Act became the blueprint for the structure of Parliament in the          F
new Constitution. The Rajya Sabha, as the Upper House of the
Parliament, was adopted into the Constitution. The vision of the
Constitution makers behind the establishment of the Upper House of
Parliament has found expression in the classic work of Granville Austin:
         “The members of the Constituent Assembly had one predominant             G
         aim when framing the Legislative provisions of the Constitution:
         to create a basis for the social and political unity of the country…
142
      Ibid
143
      Granville Austin, The Indian Constitution: Cornerstoneof a Nation, Oxford
      University Press (1966), at page 195                                        H
826              SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A              The goals of the Constituent Assembly… 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.”144
              89. Article 80 of the Constitution deals with the composition of
B     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
C     by means of a single transferable vote145. The method of electing
      representatives from Union territories has been left to prescription by
      Parliament.146 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 the division
D     provided in the Fourth Schedule of the Constitution (read with Articles
      4(1) and 80(2)). The reason behind this division of seats is “to safeguard
      the interests of the smaller states while at the same time ensuring the
      adequate representation of the larger states, so that the will of the
      representatives of a minority of the electorate does not prevail over that
      of those who represented the majority”147. In this sense, the Rajya Sabha
E     has a special structure.
             90. The institutional structure of the Rajya Sabha has been
      developed to reflect the pluralism of the nation and its diversity of
      language, culture, perception and interest. The Rajya Sabha was envisaged
      by the makers of the Constitution to ensure a wider scrutiny of legislative
F     proposals. As a second chamber of Parliament, it acts as a check on
      hasty and ill-conceived legislation, providing an opportunity for scrutiny
      of legislative business. The role of the Rajya Sabha is intrinsic to ensuring
      executive accountability and to preserving a balance of power. The Upper
      Chamber complements the working of the Lower Chamber in many
G     144
            Granville Austin, The Indian Constitution: Cornerstoneof a Nation, Oxford
            University Press (1966), at pages 180 & 203
      145
            Article 80(4), The Constitution of India
      146
            Article 80(5), The Constitution of India
      147
            Sidharth Chauhan, Bicameralism: comparative insights and lessons,
            Seminar(February, 2013) available at http://india-seminar.com/2013/642/
H           642_sidharth_chauhan.html
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                        827
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

ways. The Rajya Sabha acts as an institution of balance in relation to the                   A
Lok Sabha and represents the federal structure148 of India. Both the
existence and the role of the Rajya Sabha constitute a part of the basic
structure of the Constitution. The architecture of our Constitution
envisions the Rajya Sabha as an institution of federal bicameralism and
not just as a part of a simple bicameral legislature. Its nomenclature as
                                                                                             B
the ‘Council of States’ rather than the ‘Senate’ appropriately justifies its
federal importance.149 Seervai has observed that the federal principle is
dominant in our Constitution. While adverting to several of its federal
features, Seervai emphasises the position of the Rajya Sabha as an integral
element:
          “First and foremost, Parliament (the Central Legislature) is                       C
          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                   D
          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                      E
          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                     F
          Legislatures of the States… Fourthly, the amendment of Article
          352 by the 44th Amendment gives the Council of States a most
          important voice in the declaration of Emergency, because a
          proclamation of emergency must be approved by each House
          separately by majorities required for an amendment of the
          Constitution… Fifthly, the executive power of the Union is vested                  G
148
      In SR Bommai v Union of India (AIR 1994 SC 1998), a seven-judge Bench of this
      Court held: “Democracy and federalism are the essential features of our Constitution
      and are part of its basic structure.”
149
      Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of
      Rajya Sabha, (2009), at page 2. See also M.N. Kaul and S.L. Shakdher, Practice
      and Procedure of Parliament, Lok Sabha Secretariat (2001)                              H
828               SUPREME COURT REPORTS                                    [2018] 8 S.C.R.


A               in the President of India who is not directly elected by the people
                but is elected by an electoral college consisting of (a) the elected
                members of the Legislative Assemblies of the States and (b) the
                elected members of both Houses of Parliament… Directly the
                State Legislatures have substantial voting power in electing the
                President; that power is increased indirectly through the Council
B
                of States, which is elected by the Legislative Assemblies of
                States.”150
              91. The Rajya Sabha represents the constituent states of India.
      It legitimately holds itself as the guardian of the interest of the component
      states in a federal polity. It endeavours to remain concerned and sensitive
C     to the aspirations of the states, thereby strengthening the country’s “federal
      fabric” and “promotes national integration”.151 Being the federal chamber
      of Parliament, the Rajya Sabha enjoys some special powers, which are
      not even available to the Lok Sabha, under the Constitution152:
                “(i) Article 249 of the Constitution provides that Rajya Sabha
D               may pass a resolution, by a majority of not less than two-thirds
                of the Members present and voting to the effect that it is
                necessary or expedient in the national interest that Parliament
                should make a law with respect to any matter enumerated in the
                State List. Then, Parliament is empowered to make a law on the
E               subject specified in the resolution for the whole or any part of
                the territory of India. Such a resolution remains in force for a
                maximum period of one year but this period can be extended by
                one year at a time by passing a further resolution;
                (ii) Under Article 312 of the Constitution, if Rajya Sabha passes
F               a resolution by a majority of not less than two-thirds of the
                Members present and voting declaring that it is necessary or
                expedient in the national interest 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

G
      150
            H M Seervai, Constitutional Law of India, Universal Law Co. Pvt. Ltd, Vol. 1,
            (1991), at pages 299-300.
      151
            Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of
            Rajya Sabha, (2009), at page 6.
      152
            Rajya Sabha Secretariat, Structure and Functions of Rajya Sabha Secretariat, (2009),
            at pages 2-3
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                    829
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

          (iii) Under the Constitution, President is empowered to issue                  A
          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
                                                                                         B
          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                   C
dissolution.153 Being an indirectly elected House, it has no role in the
making or unmaking of the Government and therefore it is comparatively
“free from compulsions of competitive party politics”.154 As a revising
chamber, the Constitution makers envisioned that it will protect the values
of the Constitution, even if it is against the popular will. The Rajya Sabha             D
is a symbol against majoritarianism.
A Constitution Bench of this Court in Kuldip Nayar v Union of
India155highlighted theimportance of the Rajya Sabha:
          “47. The Rajya Sabha is a forum to which experienced public
          figures get access without going through the din and bustle of a               E
          general election which is inevitable in the case of Lok Sabha. It
          acts as a revising chamber over the Lok Sabha. The existence
          of two debating chambers means that all proposals and
          programmes of the Government are discussed twice. As a
          revising chamber, the Rajya Sabha helps in improving Bills passed              F
          by the Lok Sabha...”156
      93. Participatory governance is the essence of democracy. It
ensures responsiveness and transparency. An analysis of the Bills revised
by the Rajya Sabha reveals that in a number of cases, the changes
                                                                                         G
153
      Under 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.
154
      Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of
      Rajya Sabha, (2009), at pages 7-8
155
      (2006) 7 SCC 1
156
      Ibid, at page 47
                                                                                         H
830               SUPREME COURT REPORTS                                   [2018] 8 S.C.R.


A     recommended by the Rajya Sabha in the Bills passed by the Lok Sabha
      were eventually carried out.157 The Dowry Prohibition Bill is an example
      of a legislation in which the Rajya Sabha’s insistence on amendments
      led to the convening of a joint sitting158 of the two Houses and in that
      sitting, one of the amendments suggested by the Rajya Sabha was adopted
      without a division.159 The Rajya Sabha has a vital responsibility in nation
B
      building, as the dialogue between the two houses of Parliament helps to
      address disputes from divergent perspectives. The bicameral nature of
      Indian Parliament is integral to the working of the federal Constitution.
      It lays down the foundations of our democracy. That it forms a part of
      the basic structure of the Constitution, is hence based on constitutional
C     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
D     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
E     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
F     features of the Constitution are not transgressed.
      E.2     Aadhaar Act as a Money Bill
      This Court must now deal with whether the Aadhaar Act was validly
      passed as a Money Bill.
      157
G           Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of
            Rajya Sabha, (2009), at page 5
      158
            Dr Ambedkar explained that the joint sitting had been kept at the centre because of
            the federal character of the Central Legislature. See Granville Austin, The Indian
            Constitution: Cornerstone of a Nation, Oxford University Press (1966), at page
            202
      159
            Rajya Sabha Secretariat, Second Chamber In Indian Parliament: Role and Status of
H           Rajya Sabha, (2009), at page 5
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               831
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

        95. Article 110(1) of the Constitution defines a Money Bill. For a       A
Bill to be a Money Bill, it must contain “only provisions” dealing with
every or any one of the matters set out in sub-clauses (a) to (g) of
clause 1 of Article 110. The expression “if it contains only provisions
dealing with all or any of the following matters, namely...” is crucial.
Firstly, the expression “if” indicates a condition and it is only upon the
                                                                                 B
condition being fulfilled that the deeming fiction of a Bill being a Money
Bill for the purposes of the Chapter will arise. Secondly, to be a Money
Bill, the Bill should have only those provisions which are referable to
clauses (a) to (g). The condition is much more stringent than stipulating
that the Bill should incorporate any of the matters spelt out in clauses (a)
to (g). The words “only provisions” means that besides the matters in            C
sub clauses (a) to (g), the Bill shall not include anything else. Otherwise,
the expression “only” will have no meaning. The word “only” cannot be
treated to be otiose or redundant. Thirdly, the two expressions “if it
contains only provisions” and “namely” indicate that sub-clauses (a) to
(g) are exhaustive of what a Money Bill may contain. The contents of a
                                                                                 D
Money Bill have to be confined to all or any of the matters specified in
sub-clauses (a) to (g). Fourthly, sub-clause (g) covers any matter incidental
to sub-clauses (a) to (f). A matter is incidental when it is ancillary to
what is already specified. Sub-clause (g) is not a residuary entry which
covers all other matters other than those specified in sub-clauses (a) to
(f). If sub-clause (g) were read as a catch-all residuary provision, it          E
would defeat the purpose of defining a class of Bills as Money Bills.
What is incidental under sub-clause (g) is that which is ancillary to a
matter which is already specified in sub-clauses (a) to (f). The test is not
whether it is incidental to the content of a Bill but whether it is incidental
to any of the matters specifically enumerated in sub-clauses (a) to (f).
                                                                                 F
The Attorney General would request the court to read the word “only”
before “if” and not where it occurs. If the submission were to be
accepted, it would lead to the consequence that the Bill would be a
Money 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,        G
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
                                                                                 H
832                SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     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
B
      (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:
C                “(1) A Bill or amendment making provision for any of the matters
                 specified in sub-clauses (a) to (f) of clause (1) of article 110
                 shall not be introduced or moved except on the recommendation
                 of the President and a Bill making such provision shall not be
                 introduced in the Council of States.”
D     A Financial Bill does not need to have “only provisions” dealing with
      Sub-clauses (a) to (f) of Article 110. The provisions of Article 110(1)
      are therefore narrow and exhaustive.
             97. As a matter of interpretation, the use of the word “only”
      indicates that a particular entry is exhaustive and is inapplicable to
E     anything which falls outside its scope. This Court has interpreted the
      expression “only” as a word of exclusion and restriction.160 The
      interpretation of Article 110(1) as being restrictive in nature is also
      supported by the proceedings in the Constituent Assembly of India. Article
      110 corresponds to Article 90 of the Draft Constitution. On 20 May
      1949, a member of the Constituent Assembly, Ghanshyam Singh
F     Gupta, proposed an amendment in clause (1) of Article 90 to delete the
      word “only”. He stated that a Bill can be a Money bill even while
      containing other provisions. Gupta argued:
                 “This article is a prototype of Section 37 of the Government of
                 India Act which says that a Bill or amendment providing for
G                imposing or increasing a tax or borrowing money, etc. shall not
                 be introduced or moved except on the recommendation of the
                 Governor-General. This means that the whole Bill need not be a

      160
            Hari Ram v. Baby Gokul Prasad, (1991) Supp (2) SCC 608; M/s Saru Smelting (P)
            Ltd. v. Commissioner of Sales Tax, Lucknow, (1993) Supp (3) SCC 97.
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                           833
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

         money Bill: it may contain other provisions, but if there is any       A
         provision about taxation or borrowing, etc. It will come under
         this Section 37, and the recommendation of the Governor-General
         is necessary. Now article 90 says that a Bill shall be deemed
         to be a money Bill if it contains only provisions dealing
         with the imposition, regulation, etc., of any tax or the
                                                                                B
         borrowing of money, etc. This can mean that if there is a
         Bill which has other provisions and also a provision about
         taxation or borrowing etc., it will not become a money Bill.
         If that is the intention I have nothing to say; but that if
         that is not the intention I must say the word “only” is
         dangerous, because if the Bill does all these things and at            C
         the same time does something else also it will not be a
         money Bill. I do not know what the intention of the Drafting
         Committee is but I think this aspect of the article should be borne
         in mind.”161 (Emphasis supplied)
Another member Naziruddin Ahmad also emphasized on the deletion of              D
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              E
amendment was rejectedwhen 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             F
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 constitutes a Money Bill was restricted by adopting the word “only”        G
in Draft Article 90. A Bill to be a Money Bill must not contain any provision
which falls outside clauses (a) to (g) of Article 110(1). The Constitution
has carefully used the expression “dealing with” in Article 110 (1) and

161
      Constituent Assembly Debates (20 May 1949)
                                                                                H
834              SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     not the wider legislative form “related to”. A Bill, which has both - certain
      provisions which fall within sub-clauses (a) to (g) of Article 110(1) and
      other provisions which fall outside will not qualify to be a Money Bill. It
      is for this reason that there cannot also be any issue of the severability
      of the provisions of a Bill, which has certain provisions relating to sub-
      clauses (a) to (g) of Article 110(1), while also containing provisions which
B
      fall beyond. Any other interpretation would result in rewriting the
      Constitution. If a Bill contains provisions which fall outside sub-clauses
      (a) to (g), it is not a Money Bill. The Rajya Sabha is entitled as part of its
      constitutional function to legislative participation. The entirety of the Bill
      cannot be regarded as a Money Bill, once it contains any matters which
C     fall beyond sub-clauses (a) to (g). Once that is the position, it could be
      impossible to sever those parts which fall within sub-clauses (a) to (g)
      and those that lie outside. The presence of matters which travel beyond
      sub-clauses (a) to (g) has consequences in terms of the nature of the
      Bill and the legislative participation of the Rajya Sabha. If the constitutional
      function of the Rajya Sabha has been denuded on the hypothesis that
D
      this Bill was a Money Bill, the consequence of a finding in judicial review
      that the Bill is not a Money Bill must follow. Any other construction will
      reduce bicameralism to an illusion.
      This interpretation is also supported by the judgment of a Bench of seven
      judges of this Court in Krishna Kumar Singh v State of Bihar162,where
E     it held that the ordinance making power conferred upon the President
      and the Governors is limited by the requirements set out by Articles 123
      and 213. This Court had held:
               “59…The constitutional conferment of a power to frame
               ordinances is in deviation of the normal mode of legislation which
F              takes place through the elected bodies comprising of Parliament
               and the state legislatures. Such a deviation is permitted by the
               Constitution to enable the President and Governors to enact
               ordinances which have the force and effect of law simply because
               of the existence of circumstances which can brook no delay in
G              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
      162
H           (2017) 3 SCC 1
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                      835
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

          executive. The accountability of the executive to the                            A
          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...”163 (Emphasis supplied)
        99. The authority of the Lok Sabha to pass a Money Bill is based                   B
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                         C
the Rajya Sabha. Bicameralism is a founding value of our democracy. It
is a part of the basic structure of the Constitution. Introduction and passing
of a Bill as a Money Bill, which does not qualify to be a Money Bill
under Article 110(1) of the Constitution, is plainly unconstitutional. The
Lok Sabha is not entrusted with the entire authority of Parliament. The                    D
Lok Sabha, the Rajya Sabha and the President together constitute the
Parliament of India. The Lok Sabha is a body of elected representatives
and represents the aspirations of citizens. Yet, like every constitutional
institution, it is part of this basic structure of the Constitution. A political
party or a coalition which holds the majority in the Lok Sabha cannot
subvert the working of the Constitution, against which Dr B R Ambedkar                     E
had warned164 in the Constituent Assembly. A ruling government has to
work within constitutional parameters and has to abide by constitutional
morality.
       100. The Constitution of India is not a mere parchment of paper.
It was written with the vision of those who gave blood and sweat to                        F
freedom: political personalities, social reformers and constitution framers.
It symbolises a faith in institutions, justice and good governance. That
vision cannot be belied. The Speaker of the Lok Sabha has an onerous
constitutional duty to ensure that a Bill, which is not a Money Bill is not
passed as a Money Bill. The Speaker of the Lok Sabha, the Chairman                         G
of the Rajya Sabha, the members of the Lok Sabha and the Rajya Sabha,
163
      Ibid, at page 61
164
      Constituent Assembly Debates (4 November, 1948). Dr Ambedkar had remarked:
      “… it is perfectly possible to pervert the Constitution, without changing its form
      by merely changing the form of the administration and to make it inconsistent and
      opposed to the spirit of the Constitution.”                                          H
836               SUPREME COURT REPORTS                                  [2018] 8 S.C.R.


A     and the President need to work in constitutional solidarity to ensure that
      no provision of the Constitution is diluted or subverted.
             101. The Aadhaar Act was passed as a Money Bill. The provisions
      of the Act need to be analysed to determine whether the Act is a Money
      Bill.
B     The Preamble of the Act states that it is:
                “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
C               assigning of unique identity numbers to such individuals 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
D     fall within the ambit of Article 110.
             102. Section 3 entitles every resident165 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
E     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.166 Section 4(3) provides that the Aadhaar
F     number may be accepted as proof of identity for “any purpose”. Section 5
      requires UIDAI to take special measures to issue Aadhaar numbers to
      “women, children, senior citizens, persons with disability, unskilled and
      unorganised workers, nomadic tribes or to such other persons who do
      not have any permanent dwelling house and such other categories of
      individuals”. Under Section 6, UIDAI may require Aadhaar number
G     holders to update their demographic information and biometric
      information, from time to time so as to ensure continued accuracy of
      their information in the Central Identities Data Repository (“CIDR”).
      165
            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.
H     166
            Section 3(3), Aadhaar Act
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                          837
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

The Aadhaar Act defines CIDR as a centralised database containing all                          A
Aadhaar numbers issued to Aadhaar number holders along with the
corresponding demographic information and biometric information of such
individuals and other related information.167
       103.Section 7 requires proof of an Aadhaar number as a necessary
condition to avail subsidies, benefits and services, for which the                             B
expenditure is borne from the Consolidated Fund of India. The proviso
to Section 7 states 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 8(1)
requires UIDAI to perform authentication168 of the Aadhaar number of
an Aadhaar number holder, in relation to his or her biometric information                      C
or demographic information submitted by any requesting entity169. Under
Section 8(2), a requesting entity is required to obtain the consent of an
individual before collecting his or her identity information for the purposes
of authentication. The requesting entity must ensure that the identity
information of an individual collected by it is only used for submission to                    D
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                       E
and authentication and for performing functions assigned to it under the
Act. The Act provides for the composition of UIDAI170, qualifications
of its members171, terms of office172 of its chairperson and members,
their removal173 and functions174. Section 23, which deals with the powers
and functions of UIDAI, authorizes it to develop the policy, procedure
167
                                                                                               F
      Section 2(h), Aadhaar Act
168
      Section 2(c) provides: “authentication” means the process by which the Aadhaar
      number alongwith demographic information or biometric information of an
      individual is submitted to the Central Identities Data Repository for its verification
      and such Repository verifies the correctness, or the lack thereof, on the basis of
      information available with it.
169
      Section 2 (u) provides: “requesting entity” means an agency or person that submits       G
      the Aadhaar number, and demographic information or biometric information, of an
      individual to the Central Identities Data Repository for authentication
170
      Section 12, Aadhaar Act
171
      Section 13, Aadhaar Act
172
      Section 14, Aadhaar Act
173
      Section 15, Aadhaar Act
174
      Section 17, Aadhaar Act                                                                  H
838             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     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 a Memorandum of Understanding or agreement with the
B
      Central Government or State Governments or Union territories or other
      agencies for the purpose of performing any of the functions in relation to
      collecting, storing, securing or processing of information or delivery of
      Aadhaar numbers to individuals or performing authentication.
            105. Chapter V deals with grants, accounts and audit and annual
C     reports of UIDAI. Section 25 provides that the fees or revenue collected
      by UIDAI shall be credited to the Consolidated Fund of India. Chapter
      VI deals with protection of information collected from individuals for
      authentication. Section 28(3) requires UIDAI to take all necessary
      measures to ensure that the information in its possession or control,
D     including information stored in the CIDR, is secured and protected against
      access, use or disclosure (not permitted under the Act or the regulations),
      and against accidental or intentional destruction, loss or damage. Section
      29 imposes restrictions on sharing of core biometric information, collected
      or created under the Act. Section 32(2) entitles every Aadhaar number
      holder to obtain his or her authentication record in such manner as may
E     be specified by regulations. Section 33 provides for disclosure of
      information pursuant to a court order or in the interest of national security.
              106. Chapter VII of the Act (Sections 34 to 47) provides for
      offences and penalties. Section 34 provides for penalty for impersonation
      at the time of enrolment. Section 35 provides a penalty for impersonation
F     of an Aadhaar number holder by changing demographic or biometric
      information. Under Section 37, a penalty for disclosing identity information
      (which was collected in the course of enrolment or authentication) is
      provided. Section 38 provides a penalty for unauthorised access to the
      CIDR. Section 39 imposes a penalty for tampering with data in the CIDR.
G     Under Sections 40 and 41, a penalty has been provided for requesting
      entities and enrolment agencies, in case they act in contravention of the
      obligations imposed upon them under the Act. 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.

H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               839
               [DR.[ASHOK   BHUSHAN, J.] J.]
                     D. Y. CHANDRACHUD,

       107. Section 48 empowers the Central Government to supersede              A
UIDAI in certain situations. Section 50 states that UIDAI is bound by
directions on 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
                                                                                 B
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        C
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.
                                                                                 D
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 demographic and biometric
information and undergoing the process of enrolment and authentication.
The Act indicates that the Aadhaar number may be accepted as proof
of identity for any purpose. The Act, in other words, creates a platform         E
for one pan-India and nationally acceptable identity. It creates a central
database (CIDR) for storage of identity information collected from
individuals. Sections 3 to 6 specifically deal with the process of
enrolment. Section 3 entitles every resident to hold an Aadhaar number.
Section 4(3) states that the Aadhaar number so generated may be used             F
as a proof of identity “for any purpose”. The primary object of the
legislation is to create one national identity for every resident. It seeks to
do so by legislating a process for collecting demographic and biometric
information. The Act has created an authority to oversee the fulfilment
of its provisions. In its primary focus and initiatives, the law traverses
beyond the territory reserved by Article 110 for a Money Bill. Sections 7        G
to 10 deal with authentication of information submitted at the time of
enrolment. Section 8 creates obligations on requesting entities to
ensure that consent is obtained from individuals before collecting their
identity information and that the identity information of such individual is
                                                                                 H
840            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     only used for submission to the CIDR for authentication. Sections 11 to
      23 create a statutory authority (UIDAI) and assign responsibilities to
      it for the processes of enrolment and authentication and to discharge
      other functions assigned to it under the Act, including developing the
      policy, procedure and systems for issuing Aadhaar numbers to individuals.
      Section 23(2)(h) provides that apart from availing of various subsidies,
B
      benefits, and services, Aadhaar numbers may be used for “other
      purposes”. Sections 28 to 33 deal with protection of information, and
      provide for security and confidentiality of identity information and
      restrictions on sharing of information. Section 28 imposes obligations on
      the UIDAI to ensure the security and confidentialityof identity
C     information and authentication records of individuals, which are in its
      possession or control, including information stored in CIDR.
      Disclosure of identity information and authentication records can be
      made under Section 33, pursuant to a court order (not below the rank
      of District Judge) or in the interest of national security in pursuance
      of a direction of an officer (not below the rank of Joint Secretary to the
D
      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
E     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
F     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
G     Preamble to the Aadhaar Act indicates that the main objective was to
      achieve an efficient and “targeted delivery of subsidies, benefits and
      services, the expenditure for which is incurred from the Consolidated
      Fund of India”. The substantive provisions of the Act are, however, not
      confined to the object specified in the Preamble. Indeed, they travel far
H     beyond the boundaries of a money bill under Article 110(1). The
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              841
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

enrolment on the basis of demographic and biometric information,                A
generation of Aadhaar number, obtaining consent of individuals before
collecting their individual information, creation of a statutory authority to
implement and supervise the process, protection of information collected
during the process, disclosure of information in certain circumstances,
creation of offences and penalties for disclosure or loss of information,
                                                                                B
and the use of the Aadhaar number for any purpose lie outside the ambit
of Article 110. These themes are also not incidental to any of the matters
covered by sub-clauses (a) to (f) of Article 110(1). The provisions of
Section 57 which allow the use of an Aadhaar number by bodies corporate
or private parties for any purpose do not fall within the ambit of Article
110. The legal framework of the Aadhaar Act creates substantive                 C
obligations and liabilities which have the capability of impacting on the
fundamental rights of residents.
       109. A Bill, to be a Money Bill, must contain only provisions which
fall within the ambit of the matters mentioned in Article 110. Section 7 of
the Act allows the Aadhaar number to be made mandatory for availing             D
of services, benefits and subsidies for which expenditure is incurred
from the Consolidated Fund of India. Under clause (e) of Article 110(1)
the 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 expenditure). Significantly, Section 7 does not declare the
expenditure incurred on services, benefits or subsidies to be a charge on       E
the Consolidated Fund of India. What Section 7 does is to enact a provision
allowing for Aadhaar to be made mandatory, in the case of services,
benefits or subsidies which are charged to the Consolidated Fund. Section
7 does not declare them to be a charge on the Consolidated Fund. It
provides that in the case of services, benefits or subsidies which are          F
already charged to the Consolidated Fund, Aadhaar can be 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     G
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        H
842            SUPREME COURT REPORTS                             [2018] 8 S.C.R.


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)”.
B
      Even if it is assumed that there is one provision (Section 7) which is
      relatable to sub-clause (e) of Article 110(1), the other provisions of the
      Act are unrelated to Article 110(1).
            110. This Court must also advert to the legislative history prior to
      the enactment of the Aadhaar Act. An attempt to provide a legislative
C     framework governing the Aadhaar project was first made by introducing
      the National Identification Authority of India Bill, 2010 (“NIA Bill”).
      The NIA Bill was introduced in the Rajya Sabha on 3 December 2010.
      The Preamble of the Bill indicated its purpose:
              “A Bill to provide for the establishment of the National
D             Identification Authority of India for the purpose of issuing
              identification numbers to individuals residing in India and to certain
              other classes of individuals and manner of authentication of such
              individuals to facilitate access to benefits and services to such
              individuals to which they are entitled and for matters connected
E             therewith or incidental thereto.”
      The main objective of the Bill was to establish the National Identification
      Authority of India to issue unique identification numbers (called
      ‘Aadhaar’) to residents of India and to any other category of people for
      the purpose of facilitating access to benefits and services. Chapter II
F     (Clauses 3 to 10) of the Bill dealt with Aadhaar numbers. Clause 3 of
      the Bill entitled every resident to obtain an Aadhaar number on providing
      demographic and biometric information to the Authority in such manner
      as may be specified. Clause 4(3) stated that an Aadhaar number shall
      be accepted, subject to authentication, as proof of identity of the Aadhaar
      number holder. Chapter III (Clauses 11 to 23) dealt with the National
G     Identification Authority of India. Clause 11 provided for establishment
      of the Authority by the Central Government. Clause 23 empowered the
      Authority to develop the policy, procedure and systems for issuing
      Aadhaar numbers to residents and to perform authentication. Clause
      23(2)(h) stated that the Authority may specify the usage and applicability
H     of the Aadhaar number for delivery of various benefits and services.
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                      843
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

Establishing, operating and maintaining of the Central Identities Data                     A
Repository (CIDR) by the Authority was provided under Clause 23(2)(j).
Chapter IV (Clauses 24 to 27) provide for grants, accounts and audit
and annual reports related to the Authority. Clause 25 stated that the
fees or revenue collected by the Authority shall be credited to the
Consolidated Fund of India and the entire amount would be transferred
                                                                                           B
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.              C
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
                                                                                           D
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 and penalties under the law. Clause 47 empowered
the Central Government to supersede the Authority. Clause 50 authorized                    E
the Authority to delegate to any Member, officer of the Authority or any
other person such of its powers and functions (except the power under
Clause 53). Clause 57 sought to validate actions taken by the Central
Government under the Planning Commission’s notification of 2009.
      111. Since the UID programme involved complex issues, the NIA                        F
Bill was referred, on 10 December 2010, to the Standing Committee on
Finance, chaired by Mr Yashwant Sinha, for examination and report.
The Standing Committee comprised of 21 members from the Lok Sabha
and 10 members from the Rajya Sabha. The Standing Committee
submitted its Report175 on 11 December 2011. The Report raised several
objections to the Bill, which included those summarised below:                             G

      (i)   Since law making was underway, the bill being pending, any
            executive action is as violative of Parliament’s prerogatives as
175
        Forty-Second Report, Standing Committee on Finance(2011-12), available at http:/
        /www.prsindia.org/uploads/media/UID/uid%20report.pdf
                                                                                           H
844          SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A          promulgation of an ordinance while one of the Houses of
           Parliament is in session;
      (ii) While the country is facing a serious problem of illegal immigrants
           and infiltration from across the borders, the National Identification
           Authority of India Bill, 2010 proposes to entitle every resident to
B          obtain an Aadhaar number, apart from entitling such other
           category of individuals as may be notified from time to time.
           This will, it is apprehended, make even illegal immigrants entitled
           for an Aadhaar number;
      (iii) The issue of a unique identification number to individuals residing
C           in India and other classes of individuals under the Unique
            Identification (UID) Scheme is riddled with serious lacunae and
            concern areas. For example, the full or near full coverage of
            marginalized sections for issuing Aadhaar numbers could not be
            achieved mainly due to two reasons viz. (a) the UIDAI doesn’t
            have the statistical data relating to them; and (b) estimated failure
D           of biometrics is expected to be as high as 15% because a large
            chunk of population is dependent on manual labour;
      (iv) Despite the presence of serious differences of opinion within
           the Government on the UID scheme, the scheme continues to
           be implemented in an overbearing manner without regard to
E          legalities 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
F         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
G          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
H           lessons from the global experience to be learnt before proceeding
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               845
           [DR.[ASHOK   BHUSHAN, J.] J.]
                D. Y. CHANDRACHUD,

     with the implementation of the UID scheme, which the Ministry            A
     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 for any law that deals with large scale collection of
       information from individuals and its linkages across separate          B
       databases. In the absence of data protection legislation, it would
       be difficult to deal with issues like access to and misuse of
       personal information, surveillance, profiling, linking and matching
       of data bases and securing confidentiality of information;
(ix) The Standing Committee strongly disapproved of the hasty                 C
     manner in which the UID scheme was approved. Unlike many
     other schemes / projects, no comprehensive feasibility study,
     which ought to have been done before approving such an
     expensive scheme, was done involving all aspects of the UID
     scheme including a cost-benefit analysis, comparative costs of
     Aadhaar numbers and various existing forms of identity, financial        D
     implications and prevention of identity theft, for example, using
     hologram enabled ration cards to eliminate fake and duplicate
     beneficiaries;
(x) The UID scheme may end up being dependent on private
    agencies, despite contractual agreements made by the UIDAI                E
    with several private vendors. As a result, the beneficiaries may
    be forced to pay over and above the charges to be prescribed by
    the UIDAI for availing of benefits and services, which are now
    available free of cost;
(xi) The scheme is full of uncertainty in technology as a complex             F
     scheme is built up on untested and unreliable technology and on
     several assumptions. It is also not known as to whether the proof
     of concept studies and assessment studies undertaken by the
     UIDAI have explored the possibilities of maintaining accuracy
     to a large level of enrolment of 1.2 billion people; and                 G
(xii) The Committee felt that entrusting the responsibility of verification
      of information of individuals to the registrars to ensure that only
      genuine residents get enrolled into the system may have far
      reaching consequences for national security. Given the limitation
      of any mechanism such as a security audit by an appropriate
                                                                              H
846             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A             agency that would be set up for verifying the information, it is
              not evident as to whether a complete verification of information
              of all Aadhaar number holders is practically feasible; and whether
              it would deliver the intended results without compromising national
              security.
B     With these apprehensions about the UID scheme, the Standing Committee
      on Finance categorically conveyed that the National Identification
      Authority 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
C     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.
D     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
E     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 recommendations made by the Rajya Sabha (which also
      included deletion of Section 57) were rejected by the Lok Sabha. The
F     legislative history is a clear pointer to the fact that the subsequent passage
      of the Bill as a Money Bill by-passed the constitutional authority of the
      Rajya Sabha. The Rajya Sabha was deprived of its legitimate
      constitutional role by the passage of the Bill as a Money Bill in the Lok
      Sabha.
G            113. The Court must also address the contention of the
      Respondents that the Aadhaar Act is “in pith and substance” a Money
      Bill. The learned Attorney General for India has submitted that though
      the Act has ancillary provisions, its main objective is the delivery of
      subsidies, benefits and services flowing out of the Consolidated Fund of
H     India and that the other provisions are related to the main purpose of the
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                847
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

Act which was giving subsidies and benefits. It has been submitted that              A
the real test to be applied in the present dispute is the doctrine of pith and
substance.
       114. This Court has applied the doctrine of pith and substance
when the legislative competence of a legislature to enact a law is
challenged. The doctrine is applied to evaluate whether an enactment                 B
which is challenged falls within an entry in one of the three Lists in the
Seventh Schedule over which the legislature has competence under
Article 246 of the Constitution. The Seventh Schedule to the Constitution
distributes legislative powers between the Union and the States. When
a law enacted by a legislature is challenged on the ground of a lack of
legislative competence, the doctrine of pith and substance is invoked.               C
Under the doctrine, the law will be valid if in substance, it falls within the
ambit of a legislative entry on which the legislature is competent to enact
a law, even if it incidentally trenches on a legislative entry in a separate
list. The constitutional rationale for the application of this doctrine has
been explained in a Constitution Bench decision of this Court in A S                 D
Krishna v State of Madras176:
           “8…But then, it must be remembered that we are construing a
           federal Constitution. It is of the essence of such a
           Constitution that there should be a distribution of the
           legislative powers of the Federation between the Centre                   E
           and the Provinces. The scheme of distribution has varied with
           different Constitutions, but even when the Constitution enumerates
           elaborately 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             F
           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                    G
           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
176
      1957 SCR 399
                                                                                     H
848                 SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A                 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)
B
      The decision of a three judge Bench of this Court in State of Maharashtra
      v Bharat Shanti Lal Shah177 has summarized the process of reasoning
      which must be followed by the Court while applying the doctrine of pith
      and substance. The Court held:
C                 “43…If there is a challenge to the legislative competence the
                  courts will try to ascertain the pith and substance of such
                  enactment on a scrutiny of the Act in question. In this process,
                  it is necessary for the courts to go into and examine the
                  true character of the enactment, its object, its scope and
                  effect to find out whether the enactment in question is
D                 genuinely referable to the field of legislation allotted to
                  the respective Legislature under the constitutional
                  scheme. Where a challenge is made to the constitutional validity
                  of a particular State Act with reference to a subject mentioned
                  in any entry in List I, the court has to look to the substance of the
E                 State Act and on such analysis and examination, if it is found
                  that in the pith and substance, it falls under an entry in the State
                  List but there is only an incidental encroachment on topics in the
                  Union List, the State Act would not become invalid merely
                  because there is incidental encroachment on any of the topics in
                  the Union List.”178 (Emphasis supplied )
F
             115. The doctrine of pith and substance is mainly used to examine
      whether the legislature has the competence to enact a law with regard
      to any of the three Lists provided under the Constitution. It cannot be
      applied to sustain as a Money Bill, a Bill which travels beyond the
      constitutional boundaries set out by Article 110 Whether a Bill is validly
G     passed as a Money Bill has nothing to do with the legislative competence
      of the legislature under Article 246 of the Constitution. Whether a Bill is
      a Money Bill has to be tested within the boundaries of Article 110. The
      submission of the Attorney General boils down to this: ‘ignore the
      177
            (2008) 13 SCC 5
H     178
              Ibid, at page 21
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               849
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

expression “only provisions dealing with all or any of the following                A
matters” and hold the Bill to be a Money Bill by treating Section 7 as its
dominant provision’. This cannot be accepted. This would ignore the
express and clear language of Article 110. As we have emphasised
earlier, the submission of the Attorney General requires the court to
transpose the word “only” from its present position to a place before
                                                                                    B
“if”. That would be to rewrite the Constitution to mean that a Bill would
be a Money Bill if it contained some provisions which fall 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              C
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
                                                                                    D
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                       E
Kabra Teachers’ College179 to submit that the doctrine of pith and
substance can be used in any context. The Court held:
         “7. It is further a well-settled principle that entries in the different
         lists should be read together without giving a narrow meaning to
         any of them. Power of the Parliament as well as the State                  F
         legislature are expressed in precise and definite terms. While an
         entry is to be given its widest meaning but it cannot be so
         interpreted as to over-ride another entry or make another entry
         meaningless and in case of an apparent conflict between different
         entries, it is the duty of the court to reconcile them. When it            G
         appears to the Court that there is apparent overlapping between
         the two entries the doctrine of “pith and substance” has to be
         applied to find out the true nature of a legislation and the entry
         with which it would fall. In case of conflict between entries in
179
      (2002) 8 SCC 228                                                              H
850                 SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A                 List I and List II, the same has to be decided by application of
                  the principle of “pith and substance”. The doctrine of “pith
                  and substance” means that if an enactment substantially
                  falls within the powers expressly conferred by the
                  Constitution upon the legislature which enacted it, it
                  cannot be held to be invalid, merely because it incidentally
B
                  encroaches on matters assigned to another legislature.
                  When a law is impugned as being ultra-vires of the legislative
                  competence, what is required to be ascertained is the true
                  character of the legislation. If on such an examination it is found
                  that the legislation is in substance one on a matter assigned to
C                 the legislature then it must be held to be valid in its entirety even
                  though it might incidentally trench on matters which are beyond
                  its competence. In order to examine the true character of the
                  enactment, the entire Act, its object and scope and effect, is
                  required to be gone into. The question of invasion into the territory
                  of another legislation is to be determined not by degree but by
D
                  substance. The doctrine of “pith and substance’ has to be
                  applied not only in cases of conflict between the powers of
                  two legislatures but in any case where the question arises
                  whether a legislation is covered by particular legislative
                  power in exercise of which it is purported to be made.”180
E                 (Emphasis supplied)
      The decision is of no assistance to the submission in the present dispute.
      The observations made by the Court are in relation to the power to
      legislate under Article 246 of the Constitution. It is unconnected to the
      question of a Money Bill. Therefore, the argument that the Aadhaar Act
F     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
G     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:
      180
            Ibid, at pages 233-234
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                  851
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

          “The working of a Constitution does not depend wholly upon the               A
          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
                                                                                       B
          politics.”181
       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 legitimacy of democratic institutions. It
constitutes a fraud on the Constitution. Passing of a Bill as a Money Bill,
when it does not qualify for it, damages the delicate balance of                       C
bicameralism which is a part of the basic structure of the Constitution.
The ruling party in power may not command a majority in the Rajya
Sabha. But the legislative role of that legislative body cannot be obviated
by legislating a Bill which is not a Money Bill as a Money Bill. That
would constitute a subterfuge, something which a constitutional court                  D
cannot countenance. Differences in a democratic polity have to be
resolved by dialogue and accommodation. Differences with another
constitutional institution cannot be resolved by the simple expedient of
ignoring it. It may be politically expedient to do so. But it is constitutionally
impermissible. This debasement of a democratic institution cannot be
allowed to pass. Institutions are crucial to democracy. Debasing them                  E
can only cause a peril to democratic structures.
The Act thus fails to qualify as a Money Bill under Article 110 of the
Constitution. Since the Act was passed as a Money Bill, even though it
does not qualify to be so, the passage of the Act is an illegality. The
Aadhaar Act is in violation of Article 110 and therefore is liable to be               F
declared unconstitutional.
F Biometrics, Privacy and Aadhaar
        “Any situation that allows an interaction between man and
           machine is capable of incorporating biometrics”182                          G


181
      Constituent Assembly (25 November 1949)
182
      Gary Roethenbaugh, (cited in A. Cavoukian, Privacy and Biometrics, Information
      and Privacy Commissioner, Ontario, Canada, 1999, page 11, available at http://
      www.ipc.on.ca/images/Resources/pri- biom.pdf
                                                                                       H
852               SUPREME COURT REPORTS                                 [2018] 8 S.C.R.


A            118. The term ‘biometric’ is derived from the Greek nouns ‘âßïò’
      (life) and ‘ìÝôñïí’ (measure) and means ‘measurement of living
      species’.183 Biometric technologies imply that “unique or distinctive human
      characteristics of a person are collected, measured and stored for the
      automated verification of a claim made by that person for the identification
      of that person.”184 These systems thus identify or verify the identity or a
B
      claim of persons on the basis of the automated measurement and analysis
      of their biological traits (such as fingerprints, face and iris) or behavioral
      characteristics (such as 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
C     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
D     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.185 Integral to such a system is the matching of a claim of
      identity with biometric data collected and stored earlier.
E
      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’.186 Originally, fingerprints were the
      most commonly known and used biometric traits, but with improvements
      in technology, multiple sources of biometric information have emerged.
F     These include data related to facial features, iris, voice, hand geometry
      and DNA. Each trait is collected using different technologies and can
      be used for different purposes separately or in combination, to strengthen
      and improve the accuracy and reliability of the identification process. 187

G     183
            Els J. Kindt, Privacy and Data Protection Issues of Biometric Applications: A
            Comparative Legal Analysis, Springer (2013)
      184
            Ibid.
      185
            Ibid.
      186
            Ibid.
      187
            Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics,
            Routledge (2013).
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                      853
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

In general, biometric information is developed by processing extractable                   A
key features of an individual into an ‘electronic digital template’, which
is then encrypted and stored in a database. When an individual connects
with the system to verify his/her identity for any purpose, the information
is used by matching the ‘electronic digital template’ saved with the
biometric information presented, based on which comparison, the
                                                                                           B
individual’s identity will be confirmed or rejected. The intended purpose
of biometric technology is to confirm the identity of individuals through a
“one to one” identification check. This system compares a source of
biometric data with existing data for that specific person.
F.I     Increased use of biometric technology
                                                                                           C
       120. There had been an initial increase in the usage of biometric
technology in both developed and developing countries by both the private
and the public sector. However, despite the increased adoption of
biometric technologies by developed countries in the 1980s and 1990s,
recent trends depict their reluctance to deploy biometric technology - or
at least mass storage of biometric data - because of privacy concerns.188                  D
Key instances included the scrapping of the National Identity Register
and ID cards in the UK, and Germany’s decision to reject a centralised
database when deploying biometric passports.189 By contrast, in developing
countries there is a rise in the deployment of biometric technology since
it is being portrayed to citizens as a means to establishing their legal                   E
identity and providing them access to services, as well as a tool for
achieving economic development. However, too often these goals are
prioritised at the expense of their right to privacy and other human
rights.190 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                     F
position to resist the State-mandated intrusion.191
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
                                                                                           G
188
      Privacy International,Biometrics: Friend or foe of privacy?, available at https:/
      /privacyinternational.org/sites/default/files/2017-11/Biometrics_Friend_or_foe.pdf
189
      Ibid
190
      Ibid
191
      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)                                                        H
854               SUPREME COURT REPORTS                                   [2018] 8 S.C.R.


A     considered sufficiently unique at a population level to allow individual
      identification with high rates of accuracy”.192 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 services to
      the populations they serve.193 Further, identification is also essential to
B
      the gathering of accurate data which is required for monitoring the
      progress of government programmes.194 However, while biometric
      technology brings many advantages, the flip side is that the same
      technology can also lead to human rights violations:
                “When adopted in the absence of strong legal frameworks and
C               strict safeguards, biometric technologies pose grave threats to
                privacy and personal security, as their application can be
                broadened to facilitate discrimination, profiling and mass
                surveillance. The varying accuracy and failure rates of the
                technology can lead to misidentification, fraud and civic
D               exclusion.”195
             121. The adoption of biometric technologies in developing countries
      in particular poses unique challenges since the implementation of new
      technologies in these countries is rarely preceded by the enactment of
      robust legal frameworks. Assessments of countries where a legal
E     mechanism to regulate new technologies or protect data has followed as
      an afterthought have shown that there exists a huge risk of mass human
      rights violations where individuals are denied basic fundamental rights,
      and in extreme cases, even their identity.196
            122. Technology today brings with it tremendous power and is
F     much like two sides of a coin. When applied productively, it allows
      individuals around the world to access information, express themselves
      and participate in local and global discussions in real-time in ways
      previously thought unimaginable. The flip side is the concern over the
      192
            Daniel M. L Storisteanu, Toby L. Norman, Alexandra Grigore and Alain B. Labrique,
G           Can biometrics beat the developing world’s challenges?, Biometric Technology
            Today (2016)
      193
            Ibid
      194
            Ibid
      195
            Privacy International, Biometrics, available at https://privacyinternational.org/
            topics/biometrics
      196
            Privacy International, Biometrics: Friend or foe of privacy?, available at https://
H           privacyinternational.org/sites/default/files/2017-11/Biometrics_Friend_or_foe.pdf
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                   855
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

abuse of new technology, including biometrics, by the State and private                 A
entities by actions such as surveillance and large-scale profiling. This is
particularly acute, given the fact that technological advancements have
far outpaced legislative change. As a consequence, the safeguards
necessary to ensure protection of human rights and data protection are
often missing. The lack of regulatory frameworks, or the inadequacy of
                                                                                        B
existing frameworks, has societal and ethical consequences and poses a
constant risk that the concepts of privacy, liberty and other fundamental
freedoms will be misunderstood, eroded or devalued.197
        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       C
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.”198
       124. The proliferation of biometric technology has facilitated the
invasion of individual privacy at an unprecedented scale. The raw                       D
information at the heart of biometrics is personal by its very nature.199
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 individual concerned. While                       E
biometric technology raises some of the same issues that arise when
government agencies or private firms collect any personal information
about citizens, there are specific features that distinguish biometric data
from other personal data, making concerns about biometric technology
of particular importance with regard to privacy protection.200
                                                                                        F
       125. There are two main groups of privacy- related interests that
are directly pertinent to the contemporary discussion on the ethical and
legal implications of biometrics. 201 The first group falls under
‘informational privacy’ and is concerned with control of personal
197
    Ibid                                                                                G
198
   Privacy International,Biometrics: Friend or foe of privacy?, available at https://
    privacyinternational.org/sites/default/files/2017-11Biometrics_Friend_or_foe.pdf
199
   Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics,
    Routledge (2013)
200
    Ibid
201
    Ibid
                                                                                        H
856               SUPREME COURT REPORTS                                 [2018] 8 S.C.R.


A     information.The ability to control personal information about oneself is
      closely related to the dignity of the individual, self-respect and sense of
      personhood. The second interest group falls under the rubric of ‘physical
      privacy’. This sense of privacy transcends the purely physical and is
      aimed essentially at protecting the dignity of the human person. It is a
      safeguard against intrusions into persons’ physical bodies and spaces.
B
      Another issue is of property rights with respect to privacy, which concerns
      the appropriation and ownership of interests in human personality. In
      many jurisdictions, the basis of informational privacy is the notion that all
      information about an individual is in some fundamental way their own
      property, and it is theirs to communicate or retain as they deem fit.
C            126. The collection of most forms of biometric data requires some
      infringement of the data subject’s personal space. Iris and fingerprint
      scannersrequire close proximity of biometric sensors to body parts such
      as eyes, hands and fingertips.
      Even in the context of law enforcement and forensic identification, the
D     use of fingerprinting is acknowledged to jeopardise physical privacy.
      Many countries have laws and regulations which are intended to regulate
      such measures, in order to protect the individual’s rights against
      infringement by state powers and law enforcement. However, biometrics
      for the purpose of authentication and identification is different as they
E     do not have a specific goal of finding traces related to a crime but are
      instead conducted for the purpose of generating identity information
      specific to an individual. This difference in purpose actually renders the
      collection of physical biometrics a more serious 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
F     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
G     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. 202

      202
            Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics,
H           Routledge (2013).
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                    857
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

Another concern is that the widespread usage of biometrics substantially                 A
undermines the right to remain anonymous.203 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 argued that biometric technology should not be the
                                                                                         B
appropriate choice of technology as biometrics by its very nature is
inconsistent with anonymity.Giventhe manner in which personal
information can be linked and identified using biometric data, the ability
to remain anonymous is severely diminished. While some argue that “it
is not obvious that more anonymity will be lost when biometrics are
used”, this argument may have to be evaluated in light of the fact that                  C
there is no existing identifier that can be readily equated with biometrics.204
No existing identifier can expose as much information as biometric data
nor is there any other identifier that is supposed to be so universal, long-
lasting and intimately linked as biometrics. To say that the use of
biometrics will not cause further loss of anonymity may thus be overly
                                                                                         D
optimistic. Semi-anonymity maybe possible, provided that the biometric
system is carefully designed from the inception.
Another significant change brought about by biometric technology is the
precipitous decline of ‘privacy by obscurity’, which is essentially “a form
of privacy afforded to individuals inadvertently by the inefficiencies of
paper and other legacy recordkeeping.” 205 Now that paper records                        E
worldwide are giving way to more efficient digital record-keeping and
identification, this form of privacy is being extinguished, and sometimes
without commensurate data privacy protections put in place to remedy
the effects of the changes.”206
      128. Biometrically enhanced identity information, combined with                    F
demographic data such as address, age and gender, among other data,
when used in increasingly large, automated systems creates profound
changes in societies, particularly in regard to data protection, privacy,
and security. Biometrics are at the very heart of identification systems.
There are numerous instances in history where the persecution of groups                  G
203
      Ibid
204
      Ibid
205
      Pam Dixon, A Failure to Do No Harm – India’s Aadhaar biometric ID program and
      its inability to protect privacy in relation to measures in Europe and the U.S.,
      Health and Technology (2017), Vol. 7, at pages 539–567
206
      Ibid.                                                                              H
858               SUPREME COURT REPORTS                                 [2018] 8 S.C.R.


A     of civilians on the basis of race, ethnicity and religion was facilitated
      through the use of identification systems. There is hence an alarming
      need to ensure that the on-going development of identification systems
      be carefully monitored, while taking into account lessons learnt from
      history.
B            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 /
C     identification and this is where biometric technology may be
      unnecessary.207 (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
D     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
E     and storage of such innate data is dehumanising as it reduces the individual
      to but a number. Ultimately, organisations and governmental agencies
      must demonstrate that there is a compelling legitimate interest in using
      biometric technology and that an obligatory fingerprint requirement is
      reasonably related to the objective for which it is required. One way of
      avoiding unnecessary collection of biometric data is to set strict legal
F     standards to ensure that the intrusion into privacy is commensurate with
      and proportional to the need for the collection of bio-metric data.208
      F.2     Consent in the collection of biometric data
             131. Rules on the collection of physical data by government
G     agencies usually specify under what conditions a person can be required
      to provide fingerprints and/or bodily tissues. If consent is required, rules
      are in place to regulate the scope of consent. If forced searches are
      allowed, specifications are usually provided as to how and by whom the
      207
            Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics,
            Routledge (2013).
H     208
            Ibid
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                  859
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

search will be performed. Therefore, the legal questions surrounding the               A
issue should be:
(a) If required, what exactly should be the extent of coverage of the
    consent?
(b) When is the compulsory collection of biometric information required
    and who is eligible to conduct it?                                                 B

(c) What is the procedure to do so?
(d) What exactly should be filed and stored?
        132. Biometric technology is far from being a mature technology
and a variety of errors inevitably occur. Mature technology is a popular               C
term for any technology for which any improvements in deployment are
evolutionary rather than revolutionary.209 Once a biometric system is
compromised, it is compromised forever. In the event of biometric identity
theft, there would appear to be no alternative but to withdraw the user
from the system. Passwords and numbers can be changed, but how                         D
does one change the basic biological features that compromise biometrics
in the event that there is a theft?
All of these parameters need to be applied to test the validity of the
Aadhaar legislation in a two-part inquiry: First, reports and steps taken
by the Government of India that guided the introduction and role of
                                                                                       E
biometrics before the enactment of the Aadhaar Act will be analysed,
which will be followed by an analysis of relevant provisions concerning
the intersection of biometric technology and privacy, as they are enshrined
in the Aadhaar Act, 2016 and supporting Regulations made under it.
F.3     Position before the Aadhaar legislation
                                                                                       F
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                   G
a period of 12 months.210 This was followed bya Processes Committee
209
      Segen’s Medical Dictionary, 2012.
210
      Ministry of Communication & Information Technology, Department of Information
      Technology, Administrative Approval for the project - “Unique ID for BPL
      families”, dated March 03, 2006 (Annexure R-1, List of Pre-enactment dates and
      events for the Aadhaar project submitted by the Learned AG).                     H
860               SUPREME COURT REPORTS                                  [2018] 8 S.C.R.


A     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.211 The Processes Committee prepared a paper titled ‘Strategic
      Vision: Unique Identification of Residents’212. The paper recommended
      the linkage of the UID database with other databases which would ensure
B
      continuous updation and user-based validation and use of the Election
      Commission’s database as the base database.213The document inter-
      alia, also stated that statutory backing would be required for adoption of
      UID in the long term;214focus and conviction would be required on security
      and privacy to ensure adoption by different stakeholders;215 while
C     ‘transparency vs. right to privacy’ was another challenge that would
      have to be addressed.216 Biometrics, however, found no mention in the
      paper at this stage.
      Thereafter, on 4 December 2006, an Empowered Group of Ministers
      (“EGoM”), was constituted with the approval of the Prime Minister to
D     collate the National Population Register (“NPR”) under the Citizenship
      Act 1955 and the Unique Identification Number Project.217 In its meeting
      held on 27 April 2007, the Processes Committee decided that the UID
      database would evolve in three stages: initial, intermediate and final.
      Biometrics was mentioned for the first time in the context of UID, when
      the committee agreed that if the infrastructure was available and the
E     photograph and/or biometrics of a resident was obtainable along with
      other information, it would be captured in the initial and intermediate

      211
            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
F           BPL families project, dated July 03, 2006 (Annexure R-2, List of Pre-enactment
            dates and events for the Aadhaar project submitted by the learned AG).
      212
            Strategic Vision: Unique Identification of Residents, dated 26 November 2006
            (Annexure R-3, List of Pre-enactment dates and events for the Aadhaar project
            submitted by the learned AG).
      213
            Ibid
      214
G           Ibid
      215
            Ibid
      216
            Ibid
      217
            Constitution of an Empowered Group of Ministers to collate two schemes - the
            National Population Register under the Citizenship Act, 1955 and the Unique
            Identification Number (UID) project of the Department of Information Technology
            (Annexure R-4, List of Pre-enactment dates and events for the Aadhaar project
H           submitted by the learned AG).
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                    861
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

stages as well.218 Subsequently, the EGoM approved the establishment                     A
of a UID Authority under the Planning Commission on 28 January 2008.219
while the strategy to collate NPR and UID was also approved. The
EGoM also agreed that the collection of data under the NPR exercise
could include collection of photographs and biometrics to the extent
feasible, while it was also resolved that the data collected under the
                                                                                         B
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                      C
data, but it would also have the authority to take its own decisions as to
how a database should be built.220 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.
                                                                                         D
       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.221 It was also decided that partner databases for two-                  E
way linkages between the UID database and the partner databases for

218
      Planning Commission, No. 4(4)/56/2005- C&I, Minutes of the Fifth Meeting of
      the Unique ID project under the Chairmanship of Dr. Arvind Virmani (Annexure
      R-6, List of Pre-enactment dates and events for the Aadhaar project submitted by
      the learned AG).                                                                   F
219
      Minutes of the Second Meeting of the EGoM to collate two schemes - The
      National Population Register under the Citizenship Act, 1955 and the Unique
      Identification number (UID) project of the Department of Information Technology
      (Annexure R-10, List of Pre-enactment dates and events for the Aadhaar project
      submitted by the learned AG).
220
      Minutes of the Fourth Meeting of the EGoM to collate two schemes - The             G
      National Population Register under the Citizenship Act, 1955 and the Unique
      Identification Number (UID) project of the Department of Information Technology
      (Annexure R-12, List of Pre-enactment dates and events for the Aadhaar project
      submitted by the learned AG).
221
      Secretary, Government of India, Planning Commission, D.O. No. A-11016/02/09-
      UIDAI (Annexure R-22, List of Pre-enactment dates and events for the Aadhaar
      project submitted by the learned AG).                                              H
862                   SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A     maintenance and continuous updation of the UID databases would be
      ECI database, Ministry of Rural Development- rural household survey
      database and the State ration card (PDS) databases.
             135. The first meeting of the PM’s Council of UIDAI, was held
      on 12 August 2009. Various proposals were approved by the Council,222
B     by which it was decided, among other things, that the proposal to designate
      UIDAI as an apex body to set standards in the area of biometrics and
      demographic data structures be approved. On29September2009, UIDAI
      set up the Biometrics Standards Committee (“BSC”) to frame biometric
      standards for UIDAI. The Committee was assigned with the following
      mandate:223
C
            •       To develop biometric standards that will ensure interoperability
                    of devices, systems and processes used by various agencies that
                    use the UID system.
            •       To review the existing standards of Biometrics and, if required,
D                   modify/extend/enhance them so as to serve the specific
                    requirements of UIDAI relating to de-duplication and
                    Authentication.
      This was followed by the creation of the Demographic Data Standards
      and Verification Procedure Committee (“DDSVPC”) on 9 October 2009,
      with the following mandate:224
E
            •       Review/ modify/ extend/ enhance the existing standards of
                    Demographic data and recommend the Demographic Data
                    standards (The data fields and their formats/structure, etc.) that
                    will ensure interoperability and standardization of basic
                    demographic data and their structure used by various agencies
F                   that use the UID system; and
            •       Recommend the Process of Verification of this demographic data
                    in order to ensure that the data captured, at the time of enrolment
                    of the residents into the UID system, is correct.

G     222
                Planning Commission, Minutes of the meeting of the PM’s Council of UIDAI
                (Annexure R-35, List of Pre-enactment dates and events for the Aadhaar project
                submitted by the Learned AG).
      223
                Planning Commission, UIDAI, Office Memorandum, available at https://www.
                uidai.gov.in/images/resource Biometric _ Standards _ Committee _ Notification
                .pdf.
      224
                DDSVPC (UIDAI), DDSVPC Report, dated 09 December 2009, available at https:/
H               /uidai.gov.in/images/UID_DDSVP_Committee_Report_v1.0.pdf ,at pages 5-6.
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                        863
                 [DR.[ASHOK
                      D. Y. CHANDRACHUD,
                              BHUSHAN, J.] J.]

       136. The DDSVPC in its report dated 9 December 2009, stated                           A
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.225 The
                                                                                             B
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;                                                          C

      •       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.)
                                                                                             D
      •       The process adopted for public scrutiny in the National Population
              Register.
      137. In order to verify the correctness of certain mandatory fields,
such as name, date-of-birth, and address, a “Proof of Identity” (PoI)
and “Proof of Address” (PoA) would be required. This would comprise
of documents containing the resident’s name and photograph and the                           E
name and address, respectively. On 9 April 2010, the collection of iris
biometrics for the NPR exercise was approved.226
      138. A strategy overview issued by UIDAI in April 2010
described the features, benefits, revenue model and timelines of the
project.227 The survey outlined that UIDAI would collect the following                       F
demographic and biometric information from residents in order to issue
a UID number:
      •       Name
      •       Date of birth
                                                                                             G
      •       Gender
225
          Ibid, at page 4
226
          Annexure R-43, Volume II, List of Pre-enactment dates and events for the Aadhaar
          project, Submissions by the AG
227
          UIDAI, UIDAI Strategy Overview, available at http://www.prsindia.org/uploads/
          media/UID/UIDAI%20STRATEGY%20OVERVIEW.pdf.                                         H
864                   SUPREME COURT REPORTS                                 [2018] 8 S.C.R.


A           •       Father’s/ Husband’s/ Guardian’s name and UID number (optional
                    for adult residents)
            •       Mother’s/ Wife’s/ Guardian’s name and UID number (optional
                    for adult residents)
            •       Introducer’s name and UID number ( in case of lack of
B                   documents)
            •       Address
            • All ten fingerprints, photograph and both iris scans
      On 12 May 2010, a note outlining the background of UIDAI, and
      proposing an approach for collection of demographic and biometric
C
      attributes of residents for the UID project was submitted to the Cabinet
      Committee on UIDAI.228 Permission of the Union Cabinet was sought
      to ensure that the approach which was proposed should be adhered to
      by the Registrar General of India for the NPR exercise and by all other
      Registrars in the UID system. The rationale behind the inclusion of iris
D     biometrics and the need for capturing iris scans at the time of capturing
      biometric details was also explained.
      This was followed by the introduction of the National Identification
      Authority of India Bill, 2010 (NIAI Bill) in the Rajya Sabha on 3 December
      2010. On 13 February 2011, the one millionth Aadhaar card was delivered.
E     Thereafter, on 11 April 2011, the Central Government notified the
      Information Technology (Reasonable security practices and procedures
      and sensitive personal data or information) Rules, 2011 [“IT Rules”]
      under Section 43A of the IT Act, 2000. On 29 September 2011, the
      Aadhaar project completed one year. An announcement was made of
      the generation of ten crore enrolments and of more than 3.75 crore
F     Aadhaar numbers.
      Analysis of UIDAI Reports & Rights of Registrars
      A. Biometrics Standards Committee (BSC) Report
             139. BSC in its report dated 30 December 2009 stated that it held
      extensive meetings and discussions with international experts and
G     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
      228
                Annexure R-46, Volume II, List of Pre-enactment dates and events for the Aadhaar
H               project, Submissions by the AG
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                           865
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

by different agencies using different capture devices, and through              A
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
                                                                                B
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 International Standards Organization (ISO) were most suitable        C
for the UID project.229 BSC also observed that while a fingerprints-
based biometric system shall be at the core of UIDAI’s de-duplication
efforts, its accuracy in the Indian context could not predicted in the
absence of empirical data:
         “The Committee notes that face is the most commonly captured           D
         biometric, and frequently used in manual checking. However,
         stand-alone, automatic face recognition does not provide a high
         level of accuracy, and can only be used to supplement a primary
         biometric modality. Fingerprinting, the oldest biometric technology,
         has the largest market share of all biometrics modalities globally.
         … Based on these factors, the Committee recognizes that a              E
         fingerprints-based biometrics system shall be at the core of the
         UIDAI’s de-duplication efforts…
         The Committee, however, is also conscious of the fact that de-
         duplication of the magnitude required by the UIDAI has never
         been implemented in the world. In the global context, a de-            F
         duplication accuracy of 99% has been achieved so far, using
         good quality fingerprints against a database of up to fifty million.
         Two factors, however, raise uncertainty about the accuracy that
         can be achieved through fingerprints. First, retaining efficacy
         while scaling the database size from fifty million to a billion has
                                                                                G
         not been adequately analyzed. Second, fingerprint quality, the
         most important variable for determining de-duplication accuracy,
         has not been studied in depth in the Indian context.”230
229
      UIDAI Committee on Biometrics, Biometrics Design Standards For UID
      Applications, at page 4
230
      Ibid.                                                                     H
866                   SUPREME COURT REPORTS                                 [2018] 8 S.C.R.


A            140. In its report for discussion titled “Technical Standards for
      Digital Identity Systems for Digital Identity”, the Identification for
      Development (ID4D) initiative, a cross-departmental effort report of
      the World Bank, noted that UIDAI had not implemented “an important
      security standard, ISO 24745, which provides guidance for the protection
      of biometric information for confidentiality and integrity during storage
B
      or managing identities … due to the complexity of applicable compliance
      procedures” for the Aadhaar system.231 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
C     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’.232
D     ISO 24745 seeks to “safeguard the security of a biometric system
      and the privacy of data subjects with solid countermeasures”. 233
      ISO 24745 standard specifies:
            •       “Analysis of threats and countermeasures inherent in biometric
                    and biometric system application models;
E           •       Security requirements for binding between a biometric reference
                    and an identity reference;
            •       Biometric system application models with different scenarios for
                    the storage and comparison of biometric references;
            •  Guidance on the protection of an individual’s privacy during the
F              processing of biometric information.”234
      B. Strategy Overview of 2010
      In this report, a balance was sought to be struck between ‘privacy and
      purpose’ in respect of the information of the residents which was
      231
                Identification for Development (World Bank Group), Technical Standards for
G               Digital Identity Systems for Digital Identity Draft for Discussion, available at
                http://pubdocs.worldbank.org/en/579151515518705630/ID4D-Technical-
                Standards-for-Digital-Identity.pdf, at page 22.
      232
                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.
      233
                Ibid.
H     234
                Ibid.
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               867
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

collected. The report states that ‘agencies’ may store the information of           A
the residents at the time of enrolment, but they will not have access to
the information stored in the UID database.235 Further, for the purposes
of authentication, requests made by the agencies would be answered
through a ‘Yes’ or a ‘No’ response only.236 Under the sub-heading
“Protecting Privacy and Confidentiality”, the report stated that the
                                                                                    B
additional information which was being sought from people was only
biometric information like fingerprints and iris scans, as other information
was already available with public and private agencies in the country.237
Right to privacy and confidentiality were sought to be protected by putting
necessary provisions “in place”.238 It was also observed in the context
of privacy that loss of biometric information of a resident who is a victim         C
of identity theft, especially when such information is linked to banking,
social security and passport records, risks financial and other assets and
the reputation of the resident.239 According to the review, the envisaged
UIDAI Act (which was still under contemplation at the time of publishing
of this report and had not yet been legislated) would have remedies for
                                                                                    D
the following offences:
      •   “Unauthorized disclosure of information by anyone inUIDAI,
          Registrar or the Enrolling agency;
      •   Disclosure of information violating the protocols set in place by
          UIDAI;
                                                                                    E
      •   Sharing any of the data on the database with anyone;
      •   Engaging in or facilitating analysis of the data for anyone;
      •   Engaging in or facilitating profiling of any nature for anyone or
          providing information for profiling of any nature for anyone;
      •   All offences under the Information Technology Act shall be                F
          deemed to be offences under UIDAI if directed against UIDAI
          or its database.”240
However, according to the report, UIDAI was to concern itself only
with identity fraud and any grievances in respect of document fraud
                                                                                    G
235
    UIDAI, UIDAI Strategy Overview, available at http://www.prsindia.org/uploads/
    media/UID/UIDAI%20STRATEGY%20OVERVIEW. pdf, at page 4
236
    Ibid.
237
    Ibid, at page 32
238
    Ibid.
239
    Ibid,at page 33
240
    Ibid.                                                                           H
868               SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A     (counterfeit/ misleading documents) were to be left to the Registrar
      enrolling the resident.241
              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.
B     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
C
              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”.242
      In the Strategy Overview, the term was defined as “agencies such as
      central and state departments and private sector agencies who will
D     be ‘Registrars’ for the UIDAI”.243
      The Strategy Overview also stated that:
                “Registrars will process UID applications, and connect to the
                CIDR to de-duplicate resident information and receive UID
                numbers. These Registrars can either be enrollers, or will appoint
E               agencies as enrollers, who will interface with people seeking
                UID numbers. The Authority will also partner with service
                providers for authentication. If the Registrar issues a card to
                the resident, the UIDAI will recommend that the card contain
                the UID number, name and photograph. They will be free to
F               add any more information related to their services (such
                as Customer ID by bank). They will also be free to print/
                store the biometric collected from the applicant on the
                issued card. If more registrars store such biometric information
                in a single card format, the cards will become interoperable for
                offline verification. But the UIDAI will not insist on, audit
G               or enforce this.”244 (Emphasis supplied)
      241
            Ibid,at page 34
      242
            DDSVPC (UIDAI), DDSVPC Report, (9 December 2009), available at https://
            uidai.gov.in/images/UID_DDSVP_Committee_Report_v1.0. pdf , at page 5
      243
            UIDAI, UIDAI Strategy Overview, available at http://www.prsindia.org/uploads/
            media/UID/UIDAI%20STRATEGY%20OVERVIEW.pdf, at page 2
H     244
            Ibid, at page 15
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                        869
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

      143. In the ‘Aadhaar Handbook for Registrars 2010’ (“2010                              A
Handbook”), following policy guidelines were laid down in respect of
Registrars:
      1.“Registrars may retain the biometric data collected from residents
        enrolled by them. However, the Registrar will have to exercise a
        fiduciary duty of care with respect to the data collected from                       B
        residents and will be responsible for loss, unauthorized access to
        and misuse of data in their custody.
   2. In order to ensure data integrity and security, the biometrics
        captured shall be encrypted upon collection by using the
        encryption key defined by the Registrar. It is the responsibility of
                                                                                             C
        the Registrar to ensure the safety, security and confidentiality of
        this data which is in their custody. The Registrar must protect
        the data from unauthorized access and misuse. The UIDAI
        will define guidelines for the storage of biometric data in
        order to give the Registrar some guidance on ensuring
        security of the data. The Registrar shall have to define their                       D
        own security policy and protocols to ensure safety of the Biometric
        data. The Registrars shall bear liability for any loss, unauthorized
        access and misuse of this data. 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
                                                                                             E
        how the data will be used and how it will be kept secure.”245
        (Emphasis supplied)
In the ‘Aadhaar Handbook for Registrars 2013’ (“2013 Handbook”),
it was stated that “UIDAI has defined security guidelines for the
storage of biometric data”.246 While it is indicated in the handbook that
guidelines for storage were defined by UIDAI, it is evident that this took                   F
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                         G
        Registrar inform the resident that they will be keeping the
245
       UIDAI, Aadhaar Handbook for Registrars, available at http://doitc.rajasthan.gov.in/
       administrator/Lists/Downloads/Attachments/26/aadhaar_handbook_version. pdf,
       at page 11
246
       Annexure R-74, Volume III, List of Pre-enactment dates and events for the Aadhaar
       project, Submissions by the AG.                                                       H
870                SUPREME COURT REPORTS                                  [2018] 8 S.C.R.


A                biometric data and also define how the data will be used and
                 how it will be kept secure”.247
      However, it is apparent from this guideline that it was merely a
      recommendation to the Registrars, and no obligation was cast upon the
      Registrars, to inform residents that their biometric data will be stored by
B     them and how the data was to be used and kept secure. In contrast,
      Regulation 5 of the Aadhaar (Sharing of Information) Regulations 2016,
      states:
            “Responsibility of any agency or entity other than requesting entity
                with respect to Aadhaar number. —
C           (1) Any individual, agency or entity which collects Aadhaar
                number or any document containing the Aadhaar number,
                shall: (a) collect, store and use the Aadhaar number for a lawful
                purpose; (b) inform the Aadhaar number holder the following
                details:— i. the purpose for which the information is
D               collected; ii. whether submission of Aadhaar number or
                proof of Aadhaar for such purpose is mandatory or
                voluntary, and if mandatory, the legal provision mandating
                it; iii. alternatives to submission of Aadhaar number or
                the document containing Aadhaar number, if any; (c) obtain
                consent of the Aadhaar number holder to the collection,
E               storage and use of his Aadhaar number for the specified
                purposes.
            (2) Such individual, agency or entity shall not use the Aadhaar number
                for any purpose other than those specified to the Aadhaar number
                holder at the time of obtaining his consent.
F
            (3) Such individual, agency or entity shall not share the Aadhaar
                number with any person without the consent of the Aadhaar
                number holder.” (Emphasis supplied)
             144. What the Registrar is obliged to do under law after the
      enactment of the Aadhaar Act, was a recommendation to the Registrar
G
      prior to the enactment of the Aadhaar Act. Thus, it is uncertain whether
      residents were informed about where and how their data would be kept
      247
             UIDAI (Planning Commission), Aadhaar Handbook for Registrars (2010), available
             at http://indiamicrofinance.com/wp-content/uploads/2010/08/Aadhaar-Handbook.
             pdf, at page 11; UIDAI (Planning Commission), Aadhaar Handbook for Registrars
             (2013), at page 16 (Annexure R-74, List of Pre-enactment dates and events for the
H            Aadhaar project submitted by the Learned AG).
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                   871
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

secure since the guidelines to the Registrars were only recommendatory                  A
in nature. Similarly, in a UIDAI document titled ‘Roles and Responsibilities
of Enrollment Staff, 2017’, one of the ‘Fifteen Commandments that an
Operator must remember during Resident Enrollment’ is “Make sure
that the resident is well informed that his/her biometric will only be
used for Aadhaar Enrolment/Update and no other purpose”. 248
                                                                                        B
However, in the UIDAI document titled ‘Enrollment Process Essentials,
2012’, there is no mention of any such obligation being placed upon the
enrolment staff.249 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
                                                                                        C
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                    D
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 Regulations does not offer any clarification or
mechanism on how the mandate of Section 3(2) is to be fulfilled.
The right of an individual to access information related to his or her                  E
authentication record is recognized in Section 3(2)(c) and Section 32(2)
of the Aadhaar Act. However, the supplementary regulations that
complement the Act are bereft of detail on the procedure to access such
information.
Similarly, Regulation 9(c) of the Enrolment Regulations states that the                 F
procedure for accessing data would be provided to residents through the
enrolment form, which is found in Schedule I to the Enrolment
Regulations. However, all that Schedule I states is: “I have a right to
access my identity information (except core biometrics) following
the procedure laid down by UIDAI”,without any such procedure
actually being laid down.                                                               G
248
      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
249
      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.            H
      pdf
872             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A           146. Section 2(I) of the Act, which defines an enrolling agency
      read with Regulation 23 of the Aadhaar (Enrolment and Update)
      Regulations allows for the collection of sensitive personal data
      (demographic and biometric information) of individuals by private
      agencies, which also have to discharge the burden of explaining the
      voluntary nature of Aadhaar registration and obtaining an individual’s
B
      informed consent.
      The Authentication Regulations, framed under sub-section (1), and sub-
      clauses (f) and (w) of sub-section (2) of Section 54 of the Aadhaar Act
      deal with the authentication framework for Aadhaar numbers, the
      governance of authentication agencies and the procedure for collection,
C     storage of authentication data and records. Regulation 5 (1) states what
      details shall be made available to the Aadhaar number holder at the time
      of authentication which are a) the nature of information that will be
      shared by the Authority upon authentication, (b) the uses to which
      the information received during authentication may be put; and (c)
D     alternatives to submission of identity information. Regulation 6 (2)
      mandates that a requesting entity shall obtain the consent of an Aadhaar
      number holder for authentication in physical or, preferably, in electronic
      form and maintain logs or records of the consent obtained in the manner
      and form as may be specified by the Authority for this purpose.
E     Although Regulation 5 mentions that at the time of authentication,
      requesting entities shall inform the Aadhaar number holder of alternatives
      to submission of identity 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
F     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
G     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
H     appropriate response sharing such identity information excluding
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                          873
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

any core biometric information”. The petitioners have argued that the                          A
wide ambit of this provision gives the Authority discretion to respond to
the requesting entity with information including an individual’s photograph,
name, date of birth, address, mobile number, email address and any other
demographic information that was disclosed at the time of enrolment.
Moreover, it must be realized that even if core biometric information                          B
cannot be shared, demographic information is nonetheless, sensitive.
Regulation 2(j) of the Authentication Regulations250 provides that a
digitally signed response with e-KYC data251 [which is defined in
Regulation 2(k)] can be returned to the requesting entity, while Regulation
3(ii)252 provides for this form of authentication (e-KYC) by UIDAI.
                                                                                               C
       148. Section 29(1) of the Aadhaar Act expressly states that ‘core
biometric information can never be shared with anyone for any
reason whatsoever or be used for any purpose other than generation
of Aadhaar numbers and authentication under this Act’. However,
this provision which seemingly protects an individual’s core biometric
information from being shared iscontradicted by Section 29(4)253 of the                        D
Act, the proviso to which grants UIDAI the power to publish, display or
post core biometric information of an individual for purposes 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                            E
250
      Regulation 2(j) of Aadhaar (Authentication) Regulations: “e-KYC authentication
      facility” means a type of authentication facility in which the biometric information
      and/or OTP and Aadhaar number securely submitted with the consent of the
      Aadhaar number holder through a requesting entity, is matched against the data
      available in the CIDR, and the Authority returns a digitally signed response
      containing e-KYC data along with other technical details related to the authentication   F
      transaction.
251
      Regulation 2(k) of Aadhaar Authentication Regulations: “e-KYC data” means
      demographic information and photograph of an Aadhaar number holder.
252
      Regulation 3(ii) of 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
                                                                                               G
      carried out using any of the modes, (ii) e-KYC authentication facility, which may
      be carried out only using OTP and/ or biometric authentication modes as specified
      in regulation 4(2)”.
253
      Section 29(4) states: “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.”                                                                            H
874             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     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
B     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
C
      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 to define the scope of biometric and demographic
      information. Although the Act specifically provides what information can
D     be collected, it does not specifically prohibit the collection of further
      biometric information. The scope of what can, in addition, be collected,
      has been left to regulations.These provisions empower UIDAI to expand
      on the nature of information already collected at the time of enrolment,
      to the extent of also collecting ‘such other biological attributes’ that it
      may deem fit by specifying it in regulations at a future date.
E
      The definitions of these sections provide the government with unbridled
      powers to add to the list of biometric details that UIDAI can require a
      citizen to part with during enrolment which might even amount to an
      invasive collection of biological attributes including blood and urine samples
      of individuals.
F     4 Other concerns regarding the Aadhaar Act: Misconceptions
          regarding the efficacy of biometric information
             150. The uniqueness of a fingerprint in forensic science remains
      an assumption without watertight proof. The uniqueness of biometric
      data is not absolute, it is relative. Not everyone will have a particular
G     biometric trait, or an individual’s biometric trait may be significantly
      different from the ‘normal’ expected trait. Some people may be missing
      fingerprints due to skin or other disease, which may cause further
      problems when enrolling a large population in a fingerprint-based register.
      Discrimination concerns may also be raised in such a case. Therefore, a
      large scale biometric scheme will usually need to utilise more than one
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                          875
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

biometric. For example- both fingerprint and face to ensure all people                         A
can be enrolled.254
The stability of even so called stable types of biometric data is not
absolute. Each time an individual places a fingerprint on a fingerprint
reader, the pattern may appear to be the same from a short distance, but
there are actually small differences in the pattern due to dryness, moisture                   B
and elasticity of the skin. Moreover, cuts and scratches can alter the
pattern. Similarly, even the iris, a popular biometric measurement suffers
from difficulties in obtaining a valid image. The iris can also be hindered
by specula reflections in uncontrolled lighting situations. These problems
also apply to other relatively stable biometric identifiers.255
                                                                                               C
        151. Sections 6 256 and 31(2)257 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                       D
an individual’s biometric information to be altered over the course of a
lifetime. Critics of the Aadhaar program however point to the fact that
provisions for updation fly in the face of UIDAI’s repeated
advertisements that Aadhaar enrolment is a “one-time” affair, as it is not
and will never be. Moreover, there is no way in which a person can                             E
estimate that he or she is due for an update, as this is not something that
can be discerned by actions as innocuous as looking in the mirror or at
one’s fingers, and therefore there remains no objective means of
complying with the above sections. In fact, an authentication failure and
a subsequent denial of welfare benefits, a subsidy or a service that an
individual is entitled to might be the only way one comes to the conclusion                    F
that his or her biometrics need to be updated in the CIDR.258
254
      Ramesh Subramanian, Computer Security, Privacy & Politics: Current Issues,
      Challenges & Solutions, IRM Press, at pages 99-100
255
      Ibid, at page 100
256
      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
                                                                                               G
      information in the Central Identities Data Repository.”
257
      Section 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 regulations.”
258
      L. Vishwanath, Four Reasons You Should Worry About Aadhaar’s Use of Biometrics,
      The Wire (28 March, 2017), available at https://thewire.in/rights/real-problem-          H
      aadhaar-lies-biometrics
876                  SUPREME COURT REPORTS                                    [2018] 8 S.C.R.


A     Moreover, since the promise of Aadhaar as a unique identity hinges on
      the uniqueness of biometrics, it would be logical to assume that any
      update to biometric data should go through the same rigour as a new
      enrolment. Regulation 19(a), entitled ‘Modes of Updating Residents
      Information’ under Chapter IV of the Aadhaar (Enrolment and Update)
      Regulations, 2016 provides:
B
               “19. Mode of Updating Residents Information:
               a) At any enrolment centre with the assistance of the operator
               and/or supervisor. The resident will be biometrically authenticated
               and shall be required to provide his Aadhaar number along with
               the identity information sought to be updated.”
C
      This raises the question as to how an individual will update his/her
      biometric information. If the biometric information stored in CIDR has
      changed, the present biometrics will lead to mismatch during
      authentication. This Regulation does not provide any real clarity on how
      updation should be taking place in practice for the following reasons:
D        1. As required by the regulation, can an individual be asked to
               undergo biometric authentication, when the purpose is to update
               the biometrics?
         2. Does the provision amount to an implied expectation that an
               individual is supposed to revisit the enrolment centre before all
E              ten fingers and two irises (core biometric information) are
               rendered inaccurate for the purposes of authentication? 259
      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
F            152. The proviso to Section 28(5)260 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
      259
             Ibid.
      260
             Section 28(5) states: “Notwithstanding anything contained in any other law for the
G           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
H           may be specified by regulations.”
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                    877
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

been recorded correctly or not in the first place is not possible. This                  A
becomes critical when that same information forms the basis of identity
and is the basis of authentication and subsequent access to welfare
benefits and other services. Second, there is a great potential for
fraudulently replacing a person’s biometric identity in the database, as
the individual has no means to verify the biometric information that has
                                                                                         B
been recorded at the time of enrolment. Even an entity like the enrolment
operator (with a software hack) could upload someone else’s biometrics
against another person.261 Denial of access to the individual violates a
fundamental principle of data protection: ownership of the data must at
all times vest with the individual. Overlooking this fundamental principle
is manifestly arbitrary and violative of Article 14.                                     C
6 Biometric locking
       153. Authentication Regulations 11 (1) and (4) provide for the
facility of Biometric Locking. Regulation 11(1) provides:
          “The Authority may enable an Aadhaar number holder to                          D
          permanently lock his biometrics and temporarily unlock it when
          needed for biometric authentication.”
Regulation 11(4) provides:
          “The Authority may make provisions for Aadhaar number holders
          to remove such permanent locks at any point in a secure manner.”               E
The provision allowing biometric locking is salutary to the extent that it
allows Aadhaar number holders to permanently lock their biometrics
and temporarily unlock them only when needed for biometric
authentication. But the regulation is problematic to the extent that it also
empowers the UIDAI to make provisions to remove such locking without                     F
any specified grounds for doing so.262
7 Key takeaways
      154. The use of biometric technology is only likely to grow
dramatically both in the private and public sector. On our part, we can
only ensure that the strides made in technology are accompanied by                       G
261
      L. Vishwanath, Four Reasons You Should Worry About Aadhaar’s Use of Biometrics,
      The Wire (28 March, 2017), available at https://thewire.in/rights/real-problem-
      aadhaar-lies-biometrics
262
      The Centre for Internet & Society, Analysis of Key Provisions of the Aadhaar Act
      Regulations, (31 March, 2017), available at https://cis-india.org/internet-
      governance/blog/analysis-of-key-provisions-of-aadhaar-act-regulations.             H
878              SUPREME COURT REPORTS                                 [2018] 8 S.C.R.


A     stringent legal and technical safeguards so that biometrics do not become
      a threat to privacy.263
             155. There is no unique concept of privacy and there maybe trade-
      offs between privacy and other objectives.264 The challenge regarding
      privacy is best put in the following words:
B             “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
C
              privacy but a challenge.”265
      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 accompanied by an
D     adequate discussion of privacy concerns.266 Biometrics can also be a
      “staunch friend of privacy” when the technology is used for controlling
      access and to restrict unauthorized personnel from gaining access to
      sensitive personal information.267 While evaluating privacy consequences
      of biometric technology, it is also important to bear in mind that there
E     cannot be an assumption that current privacy protections which may be
      appropriate for the present state of technology will also be sufficient in
      the future.268 Technology will continue to develop as will the need to
      develop corresponding privacy protections. Concerns around privacy
      and data protection will have to be addressed. “Fair Information Practices
      263
            A. Cavoukian, Privacy and Biometrics, Information and Privacy
F
            CommissionerCanada (1999), available at http://www.ipc.on.ca/images/Resources/
            pri-biom.pdf
      264
            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
      265
G           Ibid
      266
            Ibid
      267
            John D Woodward, Biometrics: Identifying Law & Policy Concerns, in Biometrics
            (AK Jain A.K, R Bolle, and S Pankanti eds.), Springer (1996)
      268
            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://
H           www.cgdev.org/sites/default/files/privacy-and-biometric-ID-systems_0.pdf
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                    879
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

(FIPs), Privacy by Design (PbD), and Privacy Impact Assessments                          A
(PIAs)”269 might be useful in addressing these concerns. FIPs offer the
substantive content for a privacy policy. PbD offers a proactive approach
to the protection of privacy that relies on advance planning rather
responding to problems after they arise. PIAs offer a formal way to
consider and assess the privacy consequences of technology or other
                                                                                         B
choices, including consideration of alternatives early in the planning stages.
These three methodologies are not mutually exclusive and can be
combined to achieve the just and optimal result for society.270
       156. Of particular significance is the “Do Not Harm” principle
which means that biometrics and digital identity should not be used by
the issuing authority, typically a government, or adjacent parties to serve              C
purposes that could harm the individuals holding the identification. 271
Identity systems, whether inpaper or digital, must work for the public
good and must do no harm. However, identity systems 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                      D
Harm” requires rigorous evaluation, foresight, and continual oversight.272
       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                      E
safeguards may decrease these risks- such as the framework provided
by the EUGDPR273. 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                     F
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 address the privacy
concerns issues discussed in this section of the judgment.
                                                                                         G
269
      Ibid
270
      Ibid
271
      Pam Dixon, A Failure to Do No Harm – India’s Aadhaar biometric ID program and
      its inability to protect privacy in relation to measures in Europe and the U.S.,
      Health and Technology, Vol. 7 (2017), at pages 539–567
272
      Ibid
273
      General Data Protection Regulation, available at https://gdpr-info.eu/             H
880              SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     G Legitimate state aim
      G.I Directive Principles
             158. The Union government has contended that the legitimate state
      interest in pursuing the Aadhaar project flows from the solicitous concern
      shown in the text and spirit of the Constitution for realising socio-economic
B     rights. The right to food must, according to the view proposed before the
      Court, trump over the right to privacy. The Aadhaar project, it has been
      urged, seeks to fulfil socio-economic entitlements.
             159. The Constituent Assembly did not work in a vacuum. The
      idealism with which the members of the Assembly drafted the Constitution
C     was the result of the “social content of the Independence movement” 274,
      which came from the awareness of the members about the existing
      conditions of the Indian masses. Granville Austin has therefore referred
      to the Constitution as a “social document” and a “modernizing force”,
      whose provisions reflect “humanitarian sentiments”.275 The Constitution
D     was the medium through which the nascent Indian democracy was to
      foster many goals. Austin observes:
                “Transcendent among [the goals] was that of social revolution.
                Through this revolution would be fulfilled the basic needs
                of the common man, and, it was hoped, this revolution
E               would bring about fundamental changes in the structure
                of Indian society.”276      (Emphasis supplied)
      Austin has further observed:
                “The first task of [the] Assembly… [was] to free India through
                a new constitution, to feed the starving people, and to clothe the
F               naked masses, and to give every Indian the fullest opportunity to
                develop himself according to his capacity.”277
      In his work titled “The Constitution of India: A Contextual Analysis”, Arun
      K Thiruvengadam identified one such goal of the Constitution as follows:
                “The Indian Constitution sought to lay the blueprint for economic
G               development of the vast subcontinental nation, which was an
      274
            Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford
            University Press (1999) at page xxii
      275
            Ibid, at pages 62, xiii and xxii
      276
            Ibid, at page xxi
      277
H           Ibid, at page 32
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              881
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

          imperative for a populace that was largely illiterate, poor and          A
          disproportionately situated in rural societies that had limited access
          to many essential social goods and infrastructural facilities.278”
          .
          “By establishing these positive obligations of the state, the
          members of the Constituent Assembly made it the responsibility           B
          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’.” 279                  C
          (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                     D
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.280
       161. The social and economic goals which were contemplated at               E
the time of Independence remain at the forefront of the State’s agenda
even today. Certain parts of the Constitution play a leading role in declaring
the blueprint of its social intent. Directive Principles were specifically
incorporated into the Constitution for this purpose. Though not enforceable
in courts, the principles are “fundamental in the governance of the
country” and it is the duty of the State to apply these principles while           F
making laws.281 The essence of the Directive Principles lies in Article
38 of the Constitution, which places an obligation on the State to secure
a social order for the promotion of the welfare of the people. Titled as
Part IV of the Constitution, the Directive Principles are symbolic of the
welfare vision of the Constitution makers.                                         G
278
      Arun K Thiruvengadam, The Constitution of India: A Contextual Analysis,
      (Bloomsbury 2017), at page 1
279
      Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford
      University Press (1999) at page 66
280
      Ibid, at page 99
281
      Article 37, The Constitution of India                                        H
882            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     Article 38 of the Constitution provides that :
        “(1) The 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.
B       (2) The State shall, in particular, strive to minimize the inequalities in
            income, and endeavor to eliminate inequalities in status, facilities
            and opportunities, not only amongst individuals but also amongst
            groups of people residing in different areas or engaged in different
            vocations.”
C     Clauses (b), (c), (e) and (f) of Article 39 provide thus :
        “39. The State shall, in particular, direct its policy towards securing -
        ...
        (b) that the ownership and control of the material resources of the
             community are so distributed as best to subserve the common
D
             good;
        (c) that the operation of the economic system does not result in the
             concentration of wealth and means of production to the common
             detriment;
        ...
E
        (e) that the health and strength of workers, men and women, and
             the tender age of children are not abused and that citizens are
             not forced by economic necessity to enter avocations unsuited
             to their age or strength;
        (f) that children are given opportunities and facilities to develop in a
F            healthy manner and in conditions of freedom and dignity and
             that childhood and youth are protected against exploitation and
             against moral and material abandonment.”
      Article 41 speaks of the right to work, to education, and to public
      assistance :
G
              “41. The State shall, within the limits of its economic 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.”
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                 883
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

Article 43 contemplates a living wage and conditions of work which                    A
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              B
        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
                                                                                      C
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:
The Beginnings”, George H Gadbois, Jr. observes that the Indian
Constitution, “easily the lengthiest fundamental law in the world, probably           D
ranks also as one of the most eclectic ever produced”.282 Reflecting
upon the constitutional models from which the draftspersons of India’s
Constitution drew sustenance, Gadbois states:
        “The Constitution makes provision for a parliamentary system
        adapted from the British model, a federation patterned after the              E
        Government of India Act of 1935 and the Canadian Constitution,
        a set of emergency powers similar to those set forth in the Weimar
        Constitution, a lengthy list of fundamental rights adapted from
        the American experience with a Bill of Rights, a Supreme Court
        endowed with express powers of judicial review for which the
        American Supreme Court served as the model, and list of                       F
        “Directive Principles of State Policy” patterned after the
        Constitution of Eire.”283
Reflecting on the Directive Principles, Gadbois observes:
        “Suffice to say that the directive principles have provided the
        constitutional basis and justification for the Government’s efforts           G
        to establish a welfare state, or, to use the designation preferred
        by Indian leaders, a “socialist pattern of society”.284
282
      George H Gadbois, JR, Supreme Court of India: The Beginnings (Vikram Raghavan
      and Vasujith Ram eds.), Oxford University Press (2017), at page 193
283
      Ibid, at pages 193-194
284
      Ibid, at page 195
                                                                                      H
884              SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     The sanction behind the Directives, according to him “is political and not
      juridical”. On the other hand, the fundamental rights are justiciable
      because Article 13 provides that a law which takes them away or abridges
      them will be void. The conflict as Gadbois sees it is this:
                “the directive principles are a set of instructions to the Government
B               of the day to legislate into being a welfare state, which means,
                of course, an emphasis on the social and economic uplift of the
                community at large and a corresponding subtraction from
                individual rights. It is the duty of the Government to apply these
                principles in making laws. In short, the Constitution confers upon
                the Supreme Court the task of making the fundamental rights
C               meaningful against possible infringements by the legislatures and
                executives, and makes it obligatory for the Government to bring
                about changes in the social and economic life of the nation,
                changes which were bound to affect adversely some private
                rights.
D               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.”285
E
      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
F     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
G     of desirable goals. By a process of constitutional interpretation, the values
      contained in them have been adopted as standards of reasonableness to
      expand the meaning and ambit of the fundamental rights guaranteed by
      Part III of the Constitution.286 In doing so, judicial interpretation has
      285
            Ibid, at pages 195-196
H     286
            Minerva Mills Ltd. v Union of India, (1980) 3 SCC 625
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                   885
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

attempted to imbue a substantive constitutional content to the international            A
obligations assumed by India in the Universal Declaration of Human
Rights and the International Covenant on Economic and Social and
Cultural Rights. Eradicating extreme poverty and hunger is a significant
facet of the Millennium Development Goals of the United Nations. Social
welfare legislation is but a step to achieve those goals. The enactment
                                                                                        B
of the National Food Security Act 2013 constituted a milestone in
legislative attempts to provide food security at the household level. The
Act discerns a targeted Public Distribution System for providing food-
grains to those below the poverty line. The rules contemplated in Section
12(2)(b), incorporate the application of Information and Communication
Technology tools to ensure transparency of governance and prevent a                     C
diversion of benefits. Another important piece of legislation has been
the Mahatma Gandhi National Rural Employment Guarantee Act
(MGNREGA) Act 2005 which was enacted for the enhancement of
livelihood and security of rural households. The Act guarantees a hundred
days of wage employment in every financial year to at least one able-
                                                                                        D
bodied member of every household in rural areas in public works
programmes designed to create public assets. Both the National Food
Security Act 2013 and the MGNREGA Act 2005 follow a rights-based
approach in dealing with endemic problems of poverty and deprivation
in rural areas. Leveraging Aadhaar for biometric identification of
beneficiaries, it has been argued by the respondents, is an intrinsic part              E
of the legislative effort to ensure that benefits in terms of food security
and employment guarantee are channelised to those for whom they are
meant.
G.2 Development and freedom
       164. Many scholars have delved into the substantive themes of                    F
the Indian Constitution. Upendra Baxi has argued that the Indian
Constitution has four sovereign virtues: “rights, justice, development, and
governance”287. Baxi notes that they are “intertwined and interlocked
with the rest and, in contradictory combination/recombinations with both
the constitutional and social past and their future images”.288 Development             G
is a leading aspect of our constitutional vision. Development in the
constitutional context is not only economic development assessed in terms
287
      Upendra Baxi, “A known but an indifferent judge”: Situating Ronald Dworkin in
      contemporary Indian jurisprudence, International Journal of Constitutional Law,
      (2003) at page 582
288
      Ibid                                                                              H
886               SUPREME COURT REPORTS                                 [2018] 8 S.C.R.


A     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”289 that plague an individual’s life.
             165. In a traditional sense, freedom and liberty mean an absence
B     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
C     rights operate as restraints on state action. They postulate a restriction
      on the state. Isaiah Berlin formulates the negative conception of liberty
      thus:
                “I am … free to the degree to which no man or body of man
                interferes with my activity. Political liberty is simply the area
D               within which a man can act unobstructed by others.”290
             166. Individual freedom, in this conception, imposes a duty of
      restraint on the state. Modern ideas of neo liberalism have funnelled
      this notion. Neo-liberalism postulates that the increasing presence of the
      state is a threat to individual autonomy. A free market economy with
E     minimum state control, in this view, is regarded as integral to protecting
      individual rights and freedoms. FA Hayek construes the content of liberty
      as meaning the absence of obstacles. Resultantly, this notion of liberty
      regards the role of the state in a narrow jurisprudential frame. Attempts
      by the state to pursue social justice or to use its authority for redistribution
F     of wealth would in this conception not be a legitimate use of state power.291
            167. The notion that liberty only consists of freedom from restraint
      does not complete the universe of its discourse. Broader notions of liberty
      are cognizant of the fact that individuals must be enabled to pursue their
      capacities to the fullest degree. Social and economic discrimination poses
G     289
            Amartya Sen, Development as Freedom, Oxford University Press (2000), at page
            xii
      290
            Isaiah Berlin, Two Concepts of Liberty, available at http://faculty.www.umb.edu/
            steven.levine/courses/Fall%202015/What%20is%20Freedom%20Writings/
            Berlin.pdf
      291
            F A Hayek, The Constitution of Liberty, Routledge & Kegan Paul, (1960) at pages
H           11, 207-208
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               887
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

real barriers to access education, resources and the means to a dignified           A
life. This approach to understanding the content of freedom construes
the ability to lead a dignified existence as essential to the conception of
liberty and freedom. The integral relationship between removal of socio-
economic inequality and freedom has been eloquently set out by Amartya
Sen in “Development as Freedom”292:
                                                                                    B
        “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 overactivity of repressive states. Despite
        unprecedented increases in overall opulence, the contemporary
        world denies elementary freedoms to vast numbers – perhaps                  C
        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              D
        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        E
        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      F
of good health, basic education, and the encouragement and cultivation
of initiatives. Taking it further, Sen has recognized an important co-relation
in terms of the non-availability of basic economic conditions:
        “Economic unfreedom, in the form of extreme poverty, can make
        a person a helpless prey in the violation of other kinds of freedom…        G
        Economic unfreedom can breed social unfreedom, just as social
        or political unfreedom can also foster economic unfreedom.”293
292
      Amartya Sen, Development as Freedom, Oxford University Press (2000) at page
      3-4
293
      Ibid, at page 8                                                               H
888               SUPREME COURT REPORTS                                  [2018] 8 S.C.R.


A             168. The notion of freedom as an agency has been developed by
      Sen as part of the ‘capability theory’. The necessary consequence of
      focusing upon major sources of unfreedom, in a social and economic
      perspective, is that the removal of these restraints is essential to the
      realization of freedom. If true freedom is to be achieved through the
      removal of conditions which cause social and economic deprivation, the
B
      role of the state is not confined to an absence of restraint. On the contrary,
      the state has a positive obligation to enhance individual capabilities. Martha
      Nussbaum294 argues that realising freedom requires the state to discharge
      positive duties. Nussbaum expresses a threshold level of capability below
      which true human functioning is not available. Freedom is seen in terms
C     of human development and is the process by which individuals can rise
      above capability thresholds. In the realisation of basic rights, the state is
      subject to positive duties to further the fulfilment of freedom.
              169. The broader conception of freedom and liberty which
      emerges from the writings of Sen and Nussbaum has direct consequences
D     upon how we view civil and political rights and socio-economic rights.
      The distinction between the two sets of rights becomes illusory once
      civil and political rights are regarded as comprehending within their sweep
      a corresponding duty to take such measures as would achieve true
      freedom. Henry Shue295 suggests that rights give rise to corresponding
      duties. These duties include:
E
              (i) a duty to respect;
              (ii) a duty to protect; and
              (iii) a duty to fulfil.

F     Duties of respect embody a restraint on affecting the rights of others.
      Duties to protect mandate that the state must restrain others in the
      same manner as it restrains itself. The state’s duty of non-interference
      extends to private individuals. 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.
G     The right which is protected for the individual will also signify an
      expectation that the state must create institutions enabling the exercise
      294
            Martha Nussbaum, Women and Human Development, Cambridge University Press,
            (2000)
      295
            Henry Shue, Basic Rights: Subsistence, Affluence and US Foreign Policy, Princeton
H           University Press, Second Edition (1996)
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             889
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

of facilitative measures or programmes of action, of an affirmative nature.       A
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
                                                                                  B
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 to create             C
an autonomous regulatory framework in which the individual has access
to remedies both against state and non-state actors, both of whom pose
grave dangers of assault on the individual as an autonomous entity. Failure
to discharge that duty is a failure of the state to respect, protect and
fulfil rights.
                                                                                  D
Dr Ambedkar’s prophetic final address to the Constituent Assembly
elaborates that vision:
           “On the social plane, we have in India a society based on the
           principle of graded inequality with elevation for some and
           degradation for others. On the economic plane, we have a society       E
           in which there are some who have immense wealth as against
           many who live in abject poverty. On the 26th of January 1950,
           we are going to enter into a life of contradictions. In politics we
           will have equality and in social and economic life we will have
           inequality...How long shall we continue to live this life of
           contradictions? How long shall we continue to deny equality in         F
           our social and economic life? If we continue to deny it for long,
           we will do so only by putting our political democracy in peril. We
           must remove this contradiction at the earliest possible moment
           or else those who suffer from inequality will blow up the structure
           of political democracy which [this] Assembly has [so] laboriously      G
           built up.”296
The pursuit of social welfare and security is a central aspect of
development. The State, in Ambedkar’s vision, would be the main
296
      Constituent Assembly Debates (25 November 1949)
                                                                                  H
890             SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A     instrumentality in the debate on development, which has to revolve around
      the social, economic and political spheres and would be guided by the
      values of the Constitution.
             170. Social opportunities are the facilities and “arrangements that
      society makes” for education, healthcare and nutrition, which “influence
B     the individual’s substantive freedom to live better”.297 Social security
      measures include programmes which intend to promote the welfare of
      the population through assistance measures guaranteeing access to
      sufficient resources. The social security framework is not only important
      for individual development, but also for effective participation in economic
      and political activities. Social security programmes flow from ‘economic
C     and social rights’- also called as “welfare rights”298 or 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
D     unemployment and poverty, the right to join trade unions and even the
      right to just and favourable remuneration.299 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
E     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.
F     Article 22 stipulates that:
              “Article 22
              Everyone, as a member of society, has the right to social security
              and is entitled to realization, through national effort and
              international co-operation and in accordance with the organization
G             and resources of each State, of the economic, social and cultural
              rights indispensable for his dignity and the free development of
              his personality.”
      297
         Amartya Sen, Development as Freedom, Oxford University Press (2000), at page 39
      298
          Amartya Sen, The Idea of Justice, Penguin (2009) at pages 379-380
      299
          Ibid, at page 380
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             891
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

In a similar vein, Article 23 comprehends a conglomeration of rights           A
including (i) the right to work; (ii) free choice of employment; (iii) just
and favourable conditions of work; (iv) protection against unemployment;
(v) equal pay for equal work without any discrimination; (vi) just and
favourable remuneration for work; and (vii) formation and membership
of trade unions. Article 23 construes these rights as a means of ensuring
                                                                               B
both for the individual and the family, an “existence worthy of human
dignity” supplemented if necessary “by other means of social protection”.
India having adopted the UDHR, its principles can legitimately animate
our constitutional conversations. Both Articles 22 and 23 are significant
in recognising economic rights and entitlements in matters of work and
social security. Both the articles recognise the intrinsic relationship        C
between human dignity and the realisation of economic rights. Measures
of social protection are integral to the realisation of economic freedom
and to fulfil the aspiration for human dignity.
       171. India adopted and ratified the Covenant on Civil and Political
Rights as well as the Covenant on Economic, Social and Cultural Rights.        D
India acceded to the Covenant on Economic, Social and Cultural Rights
on 10 April 1979. According to the Preamble, the states who are parties
to the Covenant have recognized that:
        “the ideal of free human beings enjoying freedom from fear and
        want can only be achieved if conditions are created whereby            E
        everyone may enjoy his economic, social and cultural rights, as
        well as his civil and political rights.”
Freedom is thus defined in terms of the absence of fear and want.
Moreover, freedom consists in the enjoyment of a conglomeration of
rights: economic, social and cultural as well as civil and political rights.   F
There is in other words no dichotomy between the two sets of rights.
Article 11 of the Covenant on Economic, Social and Cultural Rights
imposes positive obligations on the covenanting states:
  “Article 11.
                                                                               G
  1.    The States Parties to 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,
                                                                               H
892             SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A             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,
B             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
C           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.”
D           172. The Masstricht Guidelines on Violations of Economic, Social
      and Cultural Rights (January 1997) stipulate that:
              “It is now undisputed that all human rights are indivisible,
              interdependent, interrelated and of equal importance for human
              dignity. Therefore, states are as responsible for violations of
E             economic, social and cultural rights as they are for violations of
              civil and political rights.”
      The Guidelines also stipulate that like civil and political rights, economic,
      social and cultural rights impose three different types of obligations on
      states : the obligation to respect, protect and fulfil. The guidelines recognize
F     that violations of economic, social and cultural rights can occur through
      acts of commission and omission on the part of states. The omission or
      failure of states to take measures emanating from their legal obligations
      may result in such violations. Among them is the failure to enforce
      legislation or to put into effect policies designed to implement the
      provisions of the Covenant. In similar terms, the Limburg Principles on
G
      the Implementation of the International Covenant on Economic, Social
      and Cultural Rights cast affirmative duties on states to take immediate
      steps towards realizing the rights contained in the Covenant. Clauses 16,
      21 and 27 of the guidelines are thus:

H
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              893
             [DR.[ASHOK   BHUSHAN, J.] J.]
                  D. Y. CHANDRACHUD,

  “16. All States parties have an obligation to begin immediately to take      A
       steps towards full realization of the rights contained in the
       Covenant.
  21. The obligation “to achieve progressively the full realization of
      the rights” requires States parties to move as expeditiously as
      possible towards the realization of the rights. Under no                 B
      circumstances shall this be interpreted as implying for States the
      right to defer indefinitely efforts to ensure full realization. On the
      contrary all States parties have the obligation to begin immediately
      to take steps to fulfil their obligations under the Covenant.
  27. In determining whether adequate measures have been taken for             C
      the realization of the rights recognized in the Covenant attention
      shall be paid to equitable and effective use of and access to the
      available resources.”
The office of the UN High Commissioner for Human Rights notified
General Comment No. 3, which was adopted at the fifth session of the           D
Committee on Economic, Social and Cultural Rights on 14 December
1990. The Comment states:
       “…while the full realization of the relevant rights may be achieved
       progressively, steps towards that goal must be taken within a
       reasonably short time after the Covenant’s entry into force for         E
       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          F
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
                                                                               G
       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.”
                                                                               H
894                 SUPREME COURT REPORTS                                  [2018] 8 S.C.R.


A     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 available resources reach the beneficiaries
      for whom they are intended.
             173. Section 2(1)(f) of the Protection of Human Rights Act 1993
B     specifically adverts to the Covenant on Economic, Social and Cultural
      Rights:
                  “2.(1)(f) “International Covenants” means the International
                  Covenant on Civil and Political Rights and the International
                  Covenant on Economic, Social and Cultural Rights adopted by
C                 the General Assembly of the United Nations on 16th December,
                  1996 and such other Covenant or Convention adopted by the
                  General Assembly of the United Nations as the Central
                  Government may, by notification, specify;”
      Under Section 12(f), the National Human Rights Commission has been
D     entrusted with the function of studying treaties and other international
      instruments of human rights and to make recommendations for their
      effective implementation. Parliament has statutorily incorporated India’s
      obligations at international law under the above covenants as a part of
      the national effort to realise fundamental human freedoms. Achieving
      economic freedom is integral to that mission. In his classic work “The
E     Idea of Justice”, Amartya Sen has observed in this regard:
                  “The inclusion of second-generation rights makes it possible to
                  integrate ethical issues underlying general ideas of global
                  development with the demands of deliberative democracy, both
                  of which connect with human rights and quite often with an
F                 understanding of the importance of advancing human
                  capabilities.”300
             174. Social security thus acts as an underpinning link with
      development. There is also a two-way relationship between development
      and social security (expansion of human capability). Dreze and Sen have
G     dealt with this relationship in their following observation:
                  “Growth generates resources with which public and private
                  efforts can be systematically mobilized to expand education,
                  health care, nutrition, social facilities, and other essentials of fuller
      300
            Amartya Sen, The Idea of Justice, Penguin (2009) at page 381
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                  895
                 [DR.[ASHOK
                      D. Y. CHANDRACHUD,
                              BHUSHAN, J.] J.]

          and freer human life for all. And the expansion of human                     A
          capability, in turn, allows a faster expansion of resources and
          production, on which economic growth ultimately depends…
          Well-functioning public services, especially (but not only) in fields
          such as education and health, are also critical in fostering
          participatory growth as well as in ensuring that growth leads to
                                                                                       B
          rapid improvements in people’s living conditions.”301
The authors have further observed that apart from education and
healthcare, India faces larger issues of accountability in the “public sector
as a whole”.302 The lack of progress in public services acts as a huge
barrier to improve the quality of life of people.303 It has been observed:
                                                                                       C
          “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.”304
                                                                                       D
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              E
amount of expenditure that the State incurs in providing subsidies and
benefits to the common citizens, must be accompanied by accountability
and transparency. Legislative and institutional changes are often capable
of creating an atmosphere of transparency and accountability. The most
visible example of a legislative enactment which brought institutional
changes is the Right to Information Act, 2005. Commentators have often                 F
highlighted the importance of this legislation by deliberating upon how it
has been successful at “curbing corruption and restoring accountability
in public life”305. According to the State, though the Aadhaar programme
is not in itself a social security programme, the institutional framework
established by the Act, seeks to act, in a way, as an extension of social              G
301
      Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at pages x and
      xi
302
      Ibid, at page xi
303
      Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at page 33
304
      Amartya Sen, The Idea of Justice, Penguin (2009) at page 349
305
      Jean Dreze and Amartya Sen, An Uncertain Glory, Penguin (2013), at page 100      H
896             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     security programmes. The State has a legitimate concern to check that
      the welfare benefits which it marks for those, who are entitled, reach
      them without diversion. The Aadhaar programme, it is argued, acts as
      an instrument for the realization of the benefits arising out of the social
      security programmes. The Aadhaar programme, it was further contended,
      fulfils the State’s concern that its resources are utilised fully for human
B
      development.
      It has been contended by the Respondents that since the establishment
      of the UIDAI in 2009, its basic mandate is to provide a unique identity
      number to residents. The number would subserve two purposes. First, it
      would serve as a proof of identity. Second, it would be used for the
C     purpose of identifying beneficiaries for the transfer of social welfare
      benefits, provided by the state. The rationale for establishing a method
      of identification is to ensure that the benefits provided by social welfare
      programmes formulated by the State reach the beneficiaries for whom
      they are intended. As a policy intervention, a unique measure of
D     identification is intended, it has been argued, to secure financial inclusion.
      A significant hurdle in the success of social welfare programmes is that
      benefits do not reach the targeted population. The reason for this may
      have something to do intrinsically with the condition of the individuals as
      much as with their larger socio-economic circumstances. Migrant labour
      and labour in the unorganised sector lacks fixity of abode. The nature of
E     their work renders their lives peripatetic. Nomadic tribes, 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
F     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
G     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
H     of fake or multiple identities. Setting up a fake identity enables an
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               897
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

individual to pass off as another and to secure a benefit to which that          A
individual is not entitled. Fake identities compound the problem of capture
by allowing individuals to receive multiple benefits through shell identities.
Policy makers were confronted with the serious problems posed by fake
and multiple identities since they imposed a burden on the exchequer
while at the same time diluting the efficacy of state designed social
                                                                                 B
welfare measures. The burden on the exchequer is illustrated by situations
where persons who are not entitled to benefits secure them in the guise
of being persons entitled to them. When imposters secure benefits which
are not meant for them, they deprive in the process, persons who are
genuinely entitled to benefits. The class of beneficiaries of social welfare
programmes is, so to speak, adulterated by the capture of benefits by            C
those not entitled to them. This raises serious concerns of the deprivation
of human rights. The capture of benefits has the consequence of depriving
those to whom these benefits should legitimately flow, of the measures
designed by the state to protect its populace from human want and need.
The resources deployed by the state are from its public revenues. When
                                                                                 D
designing a unique measure of identification, the state must be guided by
the necessity of ensuring financial inclusion and of protecting against
financial exclusion. Every citizen who is eligible for social welfare benefits
should obtain them. No person who is entitled should be excluded.
Individuals who do not qualify for social welfare benefits should not
capture them by passing off as individuals entitled. Enforcing and               E
implementing a robust platform for identification of beneficiaries must
ensure that social welfare benefits reach the hands of those who fulfil
the conditions of eligibility and are not captured by rent-seeking behaviour
of those to whom social welfare benefits are not designed. This constitutes
a legitimate object of state policy. Reaching out to the targeted population
                                                                                 F
is a valid constitutional purpose. Social welfare measures are an intrinsic
part of state policy designed to facilitate dignified conditions of existence
to the marginalised, especially those who live below the poverty line.
Identification of beneficiaries is crucial to the fulfilment of social welfare
programmes.
      177. These concerns form the basis of the Aadhaar (Targeted                G
Delivery of Financial and other Subsidies, 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
                                                                                 H
898            SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A             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
B
              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.”
C     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:
D       “(a) issue of Aadhaar numbers to individuals on providing ..
             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 (where) the
E           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;

F       (d) establishment of the Unique Identification Authority of India…
            to perform functions in pursuance of the objectives above;
        (e) maintenance and updating the information of individuals in the
            Central Identities Data Repository in such manner as may be
            specified by regulations;
G       (f)   measures pertaining to security, privacy and confidentiality 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.”
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              899
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

The Preamble to the enactment indicates that Parliament designed the            A
legislation as an instrument of good governance, to secure an “efficient,
transparent and targeted delivery of subsidies, benefits and services”
for which the expenditure is incurred from the Consolidated Fund to
resident individuals.
       178. The Aadhaar platform is not a social welfare benefit in itself.     B
Essentially, what it seeks to achieve is to provide a unique identity to
every resident. This identity, in the form of an Aadhaar number, is obtained
upon the submission of demographic and biometric information in the
course of enrolment. The legislative design envisages that the identity of
the individual is verified through the process of authentication by which
the biometric data stored in the central repository is matched with the         C
biometric information submitted for authentication. Aadhaar is a platform
for verification of identity based principally on biometric information. In
facilitating the process of establishing the identity of the individual who
seeks social welfare benefits envisaged in Section 7, Aadhaar has an
instrumental role. It is instrumental in the sense that as a measure of         D
state policy, it seeks to bring about financial inclusion by providing a
means of identification to every segment of the population including those
who may not have been within the coverage of 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       E
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            F
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
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 about identity, for it is through the   H
900             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     assertion of identity that each individual seeks to preserve the core of
      his or her humanity. An identity is the persona which an individual puts
      forth in a multitude of relationships. The significance of our identity lies
      in our ability to express the core of our beings. When the Constitution
      protects our right to be and to be what we are, it creates a space where
      the individual is immune from interference. By recognizing our liberty
B
      as autonomous persons, the Constitution recognizes our ability to preserve
      and shape our identities in interactions with others.
      Identity may be, but is not always based upon immutable characteristics
      that are defined at birth. What is immutable may not be or, at any rate, is
      not generally understood as being capable of change. But even here, the
C     immutability of our features is relative to our own existence and is capable
      of being shaped by the social milieu in which human beings lead their
      lives. Features about our biological being which are defined at birth are,
      after all, not as constraining upon our identities as is often assumed to be
      the case. That is because these immutable features are also constantly
D     engaged with our social and cultural environment. They shape and are
      influenced by that environment.
             180. There is a distinction between identity and identification.
      Identification is a matter of proof- of establishing that a person is actually,
      the individual who claims a right or entitlement. In their daily interactions,
E     individuals have to distinguish themselves from others, whether it be in
      the course of employment, travel, civil union, location, community
      perspectives, revenue obligations or access to benefits. Identification is
      a proof of identity or evidence of identity. Identification is mandatory in
      numerous activities of day to day life: a passport is necessary for
      international travel, a voter ID is required for exercising electoral rights,
F     a driving license is necessary to ply a vehicle and an arms license is
      needed to possess a fire arm. The holder of a policy of medical insurance
      will have a card depicting his or her identity which is a proof of holding
      a valid policy for availing medical benefits.
             181. Under international law, recognition of identity is an obligation
G     of a nation state. Article 6 of the Universal Declaration of Human
      Rights provides that “everyone has the 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
H     undertake to respect the right of the child to preserve his or her identity,
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                   901
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

including nationality, name and family relations as recognized by law                   A
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            B
          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.
                                                                                        C
                                              …
          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 the actual cultural elements                   D
          considered in the domestic legal systems of the States, in order
          therefore to satisfy the specificity of the individual, with his or
          her rights that are unique, singular and identifiable.”306
      182. In National Legal Services Authority v Union of India307,
this Court held that gender identity is fundamental to and an essential                 E
component for the enjoyment of civil rights by the transgender community.
Self-determination of identity has been held to be an essential facet of
Article 21. In the view of this Court:
          “74. The recognition of one’s gender identity lies at the heart of
          the fundamental right to dignity. Gender, as already indicated,               F
          constitutes the core of one’s sense of being as well as an integral
          part of a person’s identity. Legal recognition of gender identity
          is, therefore, part of right to dignity and freedom guaranteed
          under our Constitution.
          75. Article 21, as already indicated, guarantees the protection of
                                                                                        G
          “personal autonomy” of an individual. In Anuj Garg v. Hotel
          Association of India33 (SCC p. 15, paras 34-35), this Court
          held that personal autonomy includes both the negative right of
306
      Opinion on the Right to Identity, 2007, available at http://www.oas.org/en/sla/
      iajc/docs/ijc_current_agenda_Right_to_Identity.pdf
307
      (2014) 5 SCC 438                                                                  H
902               SUPREME COURT REPORTS                                   [2018] 8 S.C.R.


A               not to be subject to interference by others and the positive right
                of individuals to make decisions about their life, to express
                themselves and to choose which activities to take part in. Self-
                determination of gender is an integral part of personal autonomy
                and self-expression and falls within the realm of personal liberty
                guaranteed under Article 21 of the Constitution of India.”
B
      Identity assumes a complex character in a networked society. Shah adopts
      the following definition of a networked society308:
              “a network society is a society where the key social structures
              and activities are organized around electronically processed
C             information networks. So it’s not just about networks or social
              networks, because social networks have been very old forms of
              social organization. It’s about social networks which process and
              manage information and are using micro-electronic based
              technologies”309.
             183. In a networked society, an individual is a data subject and a
D
      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
E     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
F     terms ‘identity’ and ‘identification’ were used as part of the Aadhaar
      project inter-changeably, introducing “a curious conflation and
      interoperability”310 between these notions. ‘Identification’ is the ability
      of a network device to identify an individual by scanning unique data
      308
            Nishant Shah, Identity and Identification – the Individual in the Time of Networked
            Governance, Socio Legal Review, available at http://www.sociolegalreview.com/
G           wp-content/uploads/2015/12/Identity-and-Identification-the-Individual-in-the-
            Time-of-Networked-Governance.pdf
      309
            Manuel Castells, Conversation with Manuel Castells,Globetrotter, available at
            http://globetrotter.berkeley.edu/people/Castells/castells-con4.html
      310
            Nishant Shah, Identity and Identification – the Individual in the Time of Networked
            Governance, Socio Legal Review, available at http://www.sociolegalreview.com/
            wp-content/uploads/2015/12/Identity-and-Identification-the-Individual-in-the-
H           Time-of-Networked-Governance.pdf
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                903
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

sets, from personal information to biometric details such as finger print            A
and iris scan, which would be stored in a massive centralized database.
UIDAI posited that identification took place through its yes/no mechanism
by which the centralised database would provide a response to whether
the biometric details submitted for authentication match those in the
repository. Technologically, at this level, Aadhaar was to be a means of
                                                                                     B
identification. Yet at another level, the Aadhaar project also offered
itself as providing a documentary identity to persons who may not have
possessed one at all. Shah, in the course of his article, has this to state
about the conflation between identity and identification in the Aadhaar
project:
             “This ambiguity and conflation cannot merely be attributed to a         C
             semantic slip of the keyboard, but to a much larger phenomenon
             which points to the construction of a new notion of the individual,
             through big data streams and measures of self-quantification. It
             offers us a techno-social framework where the machine function
             of identification is wedded to the human expression of identity,        D
             and thus offers an inroad into looking at what happens when our
             identities are mediated, mitigated, facilitated, and contained by
             the ways in which the networked technologies of authentication
             and verification operate. It is a crucial shift where the identity
             of a person is ontologically defined through the logics and logistics
             of networked computation that form the Aadhaar project. This            E
             is why the Aadhaar enrolment system, for instance, does not
             check the veracity of the information that the individual gives it.
             For the enrolment, the individual needs no proof to substantiate
             or validate the information provided. The name, the address, the
             description, etc. are empty signifiers and it is possible for anybody   F
             to assume any identity as 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         G
             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.”311
311
      Ibid                                                                           H
904             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A            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.
B     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 proving identity. Requiring an
      individual to prove identity on the basis of one mode alone will, it is
      submitted, violate the right of self-determination and free choice.
C
             186. The Aadhaar (Enrolment and Update) Regulations, 2016
      stipulate in Regulation 4, the demographic information which is required
      for enrolment. Regulation 4 is in the following terms:
              “4. Demographic information required for enrolment.-
D             (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;
E
              (iii) Gender;
              (iv) Residential Address.
              (2) The following demographic information may also additionally
              be collected during enrolment, at the option of the individual
F             undergoing enrolment:
              (i) Mobile number;
              (ii) Email address.
              (3) In case of Introducer-based enrolment, the following additional
G             information shall be collected:
              (i) Introducer name;
              (ii) Introducer’s Aadhaar number.
              (4) In case of Head of Family based enrolment, the following
H             additional information shall be collected:
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            905
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

        (i) Name of Head of Family;                                           A
        (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          B
        be as 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.”
                                                                              C
Regulation 9 postulates that at the time of enrolment, the enrolling agency
shall inform the individual who is undergoing enrolment of (i) the manner
in which the information shall be used; (ii) the nature of recipients with
whom the information is intended to be shared during authentication;
and (iii) the existence of a right to access information. Under Regulation
10, a resident seeking enrolment has to submit an application for enrolment   D
together with copies of supporting documents for proof of identity, address
and date of birth. Schedule II indicates a list of supporting documents
which are accepted for verification of identity, address and date of birth.
If a resident does not possess the supporting documents, enrolment is
contemplated through an introducer or a Head of Family. Schedule II
                                                                              E
contains as many as eighteen documents which are accepted 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      F
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
                                                                              G
        (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
                                                                              H
906             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A             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 moneys received by that Government in
B
              repayment of loans shall form one consolidated fund to be entitled
              “the Consolidated Fund of the State”.
              (2) All other public moneys received by or on behalf of the
              Government of India or the Government of a State shall be
              credited to the public account of India or the public account of
C             the State, as the case may be
              (3) No moneys out of the Consolidated Fund of India or the
              Consolidated Fund of a State shall be appropriated except in
              accordance with law and for the purposes and in the manner
              provided in this Constitution.”
D
             187. The Union Government is the custodian of the Consolidated
      Fund under Article 266. All revenues received by the government form
      part of the Consolidated Fund. No part of its proceeds can be
      “appropriated except in accordance with law and for the purpose and in
      the manner” which is provided by the Constitution. As the custodian of
E     the fund, the Union Government, it has been submitted by the respondents,
      had the Aadhaar Act enacted through Parliament. The Act places a
      restriction on the right of the individual to utilize any other identification
      save and except for the Aadhaar number, for the purpose of availing of
      a subsidy, benefit or service that involves an expenditure from the
F     Consolidated Fund. The purpose of making an Aadhaar number
      mandatory for the delivery of benefits, services and subsidies funded
      from the Consolidated Fund is to confirm the identity of the individual to
      whom the benefit is being transferred. This was in order to ensure that
      the benefits under social welfare programmes funded by the Consolidated
      Fund reach the hands of targeted beneficiaries. The Union Government
G     which expends huge sums of money in its welfare schemes was apprised
      of the fact that money which was meant for the beneficiaries was being
      siphoned off through ghosts and duplicates. As a result, genuine
      beneficiaries would be deprived of their basic rights. Cornering of benefits
      by the creation of bogus identities seriously impacted upon social welfare
H     measures adopted by the Union Government as an instrument of fostering
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            907
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

social and economic development. It was to deal with this evil that the          A
Aadhaar project assumed a statutory character in 2016. Through the
provisions of the law, Parliament intended that Aadhaar should become
an effective instrument of de-duplication. This is premised on the view
of the legislating body that the use of biometrics would render it difficult,
if not impossible, to obtain fake identities. Aadhaar, in other words, was
                                                                                 B
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   C
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.         D
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 Consolidated Fund of India can only
be appropriated in accordance with law, for the purpose of and in the
manner provided by the Constitution. The State is a trustee of public            E
resources. The adoption of Aadhaar is in fulfilment of the doctrine of
public trust. The state is under a bounden obligation to ensure that its
revenues which are placed in the Consolidated Fund are appropriated in
accordance with law and are not diverted for extraneous purposes. These
principles have been elucidated in the decisions of this Court in Natural        F
Resources Allocation, In Re, Special Reference No.1 of 2012312,
Centre for Public Interest Litigation v Union of India313, Reliance
Telecom Limited v Union of India314.
The mandate of Section 7 is founded on a legitimate state interest. The
state has a vital interest in ensuring that public revenues are duly             G
accounted, that the Consolidated Fund is utilized for purposes authorized
by law; that funds for development reach genuine beneficiaries and that

312
      (2012) 10 SCC 1
313
      (2012) 3 SCC 1
314
      (2017) 4 SCC 269                                                           H
908            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     scarce public resources meant for those at the foot of the socio-economic
      ladder are not mis-utilized by rent-seeking behavior.
      H Proportionality
             188. The petitioners have challenged the constitutional validity of
      the Aadhaar project and the Aadhaar Act on various grounds including
B     the violation of the fundamental rights of citizens including the right to
      privacy and dignity. The respondents, in defense, have argued that
      Aadhaar is an enabler of identity and empowers citizens to realise various
      facets of the right to life, such as the right to food and livelihood.
              189. The learned Attorney General has argued that the use and
C     authentication of the Aadhaar number is a necessary and proportionate
      measure to ensure targeted delivery of financial benefits and services
      and to prevent ‘leakages’. He submits that the Aadhaar scheme satisfies
      the test of proportionality: it has a rational nexus with the goal that it
      seeks to achieve, and since welfare benefits enhance the right to live
D     with dignity, the latter will prevail over the right to privacy. Mr Rakesh
      Dwivedi, learned Senior Counsel has argued that the “least intrusive
      test” is not accepted in Indian jurisprudence. He submits that even if the
      test were to be accepted, the exercise of determining whether a measure
      is the least intrusive is a technical issue for which the Court lacks the
      requisite expertise. He states that this exercise “cannot be undertaken
E     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
F     “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.

G     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
H     recounts the words of Prime Minister Morarji Desai that freedom and
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                   909
                 [DR.[ASHOK
                      D. Y. CHANDRACHUD,
                              BHUSHAN, J.] J.]

bread are not incompatible, but further adds, ‘Neither could they easily                A
be sought together’.315 As mentioned earlier, Granville Austin had
insightfully spoken about how the strands of the Constitution of unity-
integrity, democracy and social revolution could come in conflict with
one another creating challenges for those who work with the
Constitution.316 Some of the questions inherent in the Constitution
                                                                                        B
according to him are “Democracy for whom? Justice for whom? What
is Justice? What are the appropriate means of employing the
Constitution’s means’ among citizens, between them and their
government?” 317 It was due to the foresight of the framers of the
Constitution that they insisted that neither the strand of social revolution
nor the strand of democracy was to be pursued at the expense of the                     C
other.318
The ostensible conflict between bread and freedom has also been explored
in the works of Professor Upendra Baxi. In a seminal essay on human
rights in 1984 which he calls the “the great gift of classical and
contemporary human thought to culture and civilization”319, he discusses                D
the widening sphere of human rights thought and action to new arenas
and constituencies as “New rights arise from the womb of the old.”320
He draws on the distinction between basic human needs and human
rights and argues that the constant struggle between these two forces is
the essence of the difference between the right to be human approach
and the human rights approach.321 It is rightly pointed out that a discussion           E
on human rights will always constitute an inherent aspect of the larger
debate of development. He opines that whatever meaning maybe
ascribed to the term “development”, it must ensure that people will not
be deprived of the right to remain human:
          “Whatever it may be made to mean, “development” must at least                 F
          mean this: people will be given the right to be and remain human.
          Total and continuing destitution and impoverishment exposes
          people to a loss of their humanity. In no society that takes human
315
      Granville Austin, Working a Democratic Constitution: A History of the Indian
      Experience, Oxford University Press (2003), at page 652                           G
316
      Ibid, at page 651
317
      Ibid
318
      Ibid
319
      Upendra Baxi, From Human Rights to the Right to be Human: Some Heresies,
      India International Centre Quarterly, Vol. 13, No. 3/4, Pg.185, (December 1986)
320
      Ibid, at page 185
321
      Ibid                                                                              H
910               SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A               rights seriously should there be allowed a state of affairs where
                human beings become sub-human—that is, when they perforce
                have to surrender even those sonorously recited “inalienable”
                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
B
                implicit right to be and remain human, allowing them some
                autonomy of choice in planning survival.”322
      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
C     the ‘right to be human’ is reflective of the bread vs 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
D     adult suffrage may all be meaningless.323 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 indefinite postponement
E               of the provision of any kind of “freedom”. In the absence of
                such freedom, even the promised “bread” may not be realized
                by the masses; indeed, they even lose, in the process, their power
                to protest at the indignity of regime sponsored starvation. This,
                indeed, is a possibility which has materialized more often than
                not.” 324
F
      Baxi concludes that the choice between bread and freedom is a false
      antithesis. The challenge is not a choice in the abstract between bread
      and freedom but rather the balancing of the two:325
                “But the issues are not really “bread” and/or “freedom” in the
G               abstract, but rather who has how much of each, for how long, at
                what cost to others, and why. Some people have both “bread”
                and “freedom”; others have “freedom” but little “bread” or none
      322
            Ibid, at page 187
      323
            Ibid, at page 186
      324
            Ibid, at page 190
      325
H           Ibid, at page 186
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            911
                 [DR.[ASHOK
                      D. Y. CHANDRACHUD,
                              BHUSHAN, J.] J.]

          at all; yet others have half a loaf (which is better than none,        A
          surely!) with or without freedom; and still others have a precarious
          mix where “bread” is assured if certain (not all) freedoms are
          bartered.”326
It is the foremost duty of the State to work towards achieving and
maintaining a fine balance, taking into account these myriad                     B
considerations. The State must always be guided by the knowledge and
sense of duty that in a true democracy, the citizens cannot be made to
choose between rights and needs, as they are equally entitled to both.
As the sentinel of justice and protector of fundamental rights, it is the
responsibility of this Court to act as a check and ensure that government
action or inaction does not endanger or threaten to disturb the balance          C
that the Constitution seeks to achieve. It is imperative to remember that
both ‘bread’ and ‘freedom’ play a vital role in the guaranteeing to our
citizens the gamut of human rights and freedoms that make human
existence meaningful.
       191. While exercising judicial review, courts are often confronted        D
with situations involving conflicts between rights, tensions between
individuals arising from the assertion of rights and discord arising out of
the assertion of the same right by two or more individuals. Conflicts
between rights arise when the assertion of a fundamental human right
by an individual impacts upon the exercise of distinct freedoms by others.       E
The freedom of one individual to speak and to express may affect the
dignity of another. A person may be aggrieved 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            F
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        G
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
326
      Ibid, at page 186                                                          H
912                SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     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 stands in conflict with the assertion of an economic right
      which is also comprehended by the protection of life under the
      Constitution.
B
      Such conflicts require the court to embark on a process of judicial
      interpretation. The task is to achieve a sense of balance. An ideal situation
      would be one which would preserve the core of the right for both sets of
      citizens whose entitlements to freedom appear to be in conflict.
      Realistically, drawing balances is not a simple task. Balances involve
C     sacrifices and the foregoing of entitlements. In making those decisions,
      a certain degree of value judgment is inevitable. The balance which the
      court draws may be open to criticism in regard to its value judgment on
      the relative importance ascribed to the conflicting rights in judicial decision
      making. In making those fine balances, the court can pursue an objective
D     formulation by relying upon those values which the Constitution puts
      forth as part of its endeavour for a just society. Our Constitution has in
      Part III recognised the importance of political freedom. In Part IV, the
      Constitution has recognised our social histories of discrimination and
      prejudice which have led to poverty, deprivation and the absence of a
      dignified existence to major segments of society. Holding Part III in
E     balance with Part IV is integral to the vision of social and economic
      justice which the Constitution has sought to achieve consistent with
      political democracy. Difficult as this area is, a balancing of rights is
      inevitable, when rights asserted by individuals are in conflict.
             192. Several decisions of this Court over the last two decades
F     have sought to bring order to the clash between fundamental rights. In
      People’s Union for Civil Liberties (PUCL) v Union of India327,
      this Court was called upon to balance the right to information of voters
      (requiring the disclosure of the assets of candidates and their spouses at
      an election) with the right to privacy implicit in Article 21. In drawing
G     the balance, a bench of three Judges of this Court gave primacy to the
      entitlement of citizens to be informed about the affairs of those who
      would represent them in electoral democracy. As the Court held:
                 “121…By calling upon the contesting candidate to disclose the
                 assets and liabilities of his/her spouse, the fundamental right to
H     327
            (2003) 4 SCC 399
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              913
                 [DR.[ASHOK
                      D. Y. CHANDRACHUD,
                              BHUSHAN, J.] J.]

          information of a voter/citizen is thereby promoted. When there           A
          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
                                                                                   B
          not be effective and real if only truncated information of the
          assets and liabilities is given.”328
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       C
free speech and expression.
      193. In Thalappalam Service Cooperative Bank Limited v
State of Kerala329, 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:                                     D

          “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 Article 21 of the Constitution of
          India, can obviously be regulated, restricted and curtailed in the
          larger public interest. Absolute or uncontrolled individual rights       E
          do not and cannot exist in any modern State. Citizens’ right to
          get information is statutorily recognised by the RTI Act, but at
          the same time limitations are also provided in the Act itself, which
          is discernible from the Preamble and other provisions of the
          Act.” 330                                                                F
The Court held that the balance between the right to information and the
right to privacy is drawn under the Right to Information Act 2005: if the
information which is sought is personal and has no relationship with a
public activity or interest, a public authority is not legally bound to provide
such information. If the information which is sought is to be made                 G
available in the larger public interest, reasons have to be recorded because
the person from whom the information is sought has a right to privacy

328
      Ibid, at page 472
329
      (2013) 16 SCC 82
330
      Ibid, at page 112                                                            H
914               SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     guaranteed by Article 21. Thalappalam considered a conflict arising
      between two fundamental rights, the right to information protected by
      Article 19(1)(a) and the right to privacy which is protected by Article 21.
             194. More recently, in G Sundarrajan v Union of India331, a
      two judge Bench considered a challenge to the establishment of a nuclear
B     power plant on the ground that it would violate the right to life guaranteed
      by Article 21. Noting that there was a need to draw a balance between
      the assertion of several rights including the protection of the environment,
      the Court observed that the larger public interest must prevail:
                “198. We have to resolve the issue whether the establishment of
C               NPP would have the effect of violating the right to life guaranteed
                under Article 21 to the persons who are residing in and around
                Kudankulam or by establishing the NPP, it will uphold the right
                to life in a larger sense. While balancing the benefit of
                establishing KKNPP Units 1 to 6, with right to life and property
                and the protection of environment including marine life, we have
D               to strike a balance, since the production of nuclear energy is of
                extreme importance for the economic growth of our country,
                alleviate poverty, generate employment, etc. While setting up a
                project of this nature, we have to have an overall view of larger
                public interest rather than smaller violation of right to life
E               guaranteed under Article 21 of the Constitution.”332
      In Subramanian Swamy v Union of India333, 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:
F               “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
G               between competing claims of different interests.”334
      Noting that the “balancing of fundamental rights is a constitutional
      necessity”, the Court has attempted to harmonise reputation as an intrinsic
      331
            (2013) 6 SCC 620
      332
            Ibid, at page 714
      333
            (2016) 7 SCC 221
H     334
            Ibid, at page 319
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             915
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

element of the right to life under Article 21 with criminal defamation as         A
a restriction under Article 19(2).
       195. In Asha Ranjan v Chandrakeshwar Prasad335, 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 an individual accused of an offence, who      B
claimed a right to a fair trial, and the protection of the interests of the
victim which was also relatable to the same fundamental right under
Article 21. In resolving the conflict, the Court gave expression to the
need to preserve “paramount collective interests”:
         “61…circumstances may emerge that may necessitate for
                                                                                  C
         balancing between intra-fundamental rights. It has been distinctly
         understood that the test that has to be applied while balancing
         the two fundamental rights or inter fundamental rights, … may
         be different than the principle to be applied in intra-conflict
         between the same fundamental right. To elaborate, as in this
         case, the accused has a fundamental right to have a fair trial           D
         under Article 21 of the Constitution. Similarly, the victims who
         are directly affected and also form a part of the constituent of
         the collective, have a fundamental right for a fair trial. Thus,
         there can be two individuals both having legitimacy to claim or
         assert the right. The factum of legitimacy is a primary
                                                                                  E
         consideration. It has to be remembered that no fundamental right
         is absolute and it can have limitations in certain circumstances.
         Thus, permissible limitations are imposed by the State. The said
         limitations are to be within the bounds of law. However, when
         there is intra-conflict of the right conferred under the same article,
         like fair trial in this case, the test that is required to be applied,   F
         we are disposed to think, it would be “paramount collective
         interest” or “sustenance of public confidence in the justice
         dispensation system”.336
       196. These decisions indicate that the process of resolving conflicts
arising out of the assertion of different fundamental rights and conflicts        G
within the same fundamental right, necessarily involves judicial balancing.
In finding a just balance this Court has applied norms such as the
‘paramount public interest’. In seeking to draw the balance between
political freedoms and economic freedoms, the Court must preserve the
335
      (2017) 4 SCC 397
336
      Ibid, at page 433                                                           H
916               SUPREME COURT REPORTS                                [2018] 8 S.C.R.


A     euphony between fundamental rights and directive principles. It is on
      their co-existence that the edifice of the Constitution is founded. Neither
      can exist without the other. Democracy rejects the totalitarian option of
      recognising economic entitlements without political liberty. Economic
      rights have become justiciable because of the constitutional guarantees
      founded on freedom and the rule of law. The Constitution is founded on
B
      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
C     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
D     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.337 It has become a “centrepiece of jurisprudence” across the
      European continent as well as in common law jurisdictions including the
      United Kingdom, South Africa and Israel.338 Proportionality is the
E     “defining doctrinal core of a transnational rights-based
      constitutionalism”339. It has been raised to the rank of a fundamental
      constitutional principle,340 and represents a global shift from a culture of
      authority to a culture of justification.341 Servin argues that jurisprudence
      on privacy has evolved from the “right to be let alone”, to now being
F     centered around the principle of proportionality.342
      337
            Jud Mathews and Alec Stone Sweet, All things in Proportion? American Rights
            Review and the Problem of Balancing, Emory Law Journal, Vol. 60 (2011)
      338
            Alec Stone Sweet & Jud Mathews, Proportionality Balancing and Global
            Constitutionalism, Columbia Journal of Transnational Law, Vol. 47 (2008)
      339
            Jud Mathews and Alec Stone Sweet, All things in Proportion? American Rights
G           Review and the Problem of Balancing, Emory Law Journal, Vol. 60 (2011)
      340
            Ibid
      341
            Moshe Cohen-Eliya and Iddo Porat, Proportionality and the Culture of
            Justification, American Journal of Comparative Law Vol. 59 (2011) (cited in);
            Etienne Mureinik, A Bridge to Where? Introducing the Interim Bill of Rights,
            South African Journal on Human Rights, Vol. 10 (1994)
      342
            Andrew B. Serwin, Privacy 3.0 – The Principle of Proportionality, University of
H           Michigan Journal of Law Reform, Vol. 42 (2009)
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                     917
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

        198. Subjecting the Aadhaar scheme to the test of proportionality                 A
does not mean that the Court is second-guessing the wisdom of the
legislature. State action must be subjected to judicial scrutiny to ensure
that it passes constitutional muster. The test of proportionality stipulates
that the nature and extentof the State’s interference with the exercise of
a right (in this case, the rights to privacy, dignity, choice, and access to
                                                                                          B
basic entitlements) must be proportionate to the goal it seeks to achieve
(in this case, purported plugging of welfare leakage and better targeting).
Within the framework of constitutional interpretation, proportionality
serves as a test to determine the extent to which fundamental rights can
be limited in the face of legislative intervention which purports to further
social and public interest aims. Aharon Barak, the former Chief Justice                   C
of the Supreme Court of Israel has described the importance of the
proportionality test as thus:343
          “Examination 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                   D
          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                 E
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.                                                                                 F
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 judgment344 of
this Court:
                                                                                          G
          “On account of a Chapter on Fundamental Rights in Part III of
          our Constitution right from 1950, Indian Courts did not suffer

343
      Adalah v. The Minister of Interior, HCJ 7052/03, English translation available at
      http://elyon.court.gov.il/files_eng/03/520/070a47/03070520.a47.pdf
344
      Om Kumar v Union of India, (2001) 2 SCC 386                                         H
918               SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A                from the disability similar to the one experienced by English Courts
                 for declaring as unconstitutional legislation on the principle of
                 proportionality or reading them in a manner consistent with the
                 charter of rights. Ever since 1950, the principle of
                 ‘proportionality’ has indeed been applied vigorously to
                 legislative (and administrative action) in India. While dealing
B
                 with the validity of legislation infringing fundamental freedoms
                 enumerated in Article 19(1) of the Constitution of India…this
                 court had occasion to consider whether the restrictions imposed
                 by legislation were disproportionate to the situation and were not
                 the least restrictive of the choices.”         (Emphasis supplied)
C     The early decisions of this Court may not have used the expression
      “proportionality”. But the manner in which the court explained what
      would be a permissible restraint on rights indicates the seeds or the core
      of the proportionality standard. Proportionality has been the core of
      reasonableness since the 1950s. Chintaman Rao v State of Madhya
D     Pradesh 345 concerned a State legislation which empowered the
      government to prohibit people in certain areas from manufacturing bidis.
      The object of the law was to ensure the supply of adequate labour for
      agricultural purposes in areas where bidi manufacturing was an
      alternative source of employment for persons likely to be engaged in
      agricultural labour. The Court held that the State need not have prohibited
E     all labourers from engaging in bidi manufacturing throughout the year in
      order to satisfy the objective. Justice Mahajan, on behalf of a Constitution
      Bench held:
                 “6.The phrase “reasonable restriction” connotes that the
                 limitation imposed on a person in enjoyment of the right should
F                not be arbitrary or of an excessive nature, beyond what is
                 required in the interests of the public. The word “reasonable”
                 implies intelligent care and deliberation, that is, the choice of a
                 course which reason dictates. Legislation which arbitrarily
                 or excessively invades the right cannot be said to contain
G                the quality of reasonableness and unless it strikes a proper
                 balance between the freedom guaranteed in article 19(1)(g) and
                 the social control permitted by clause (6) of article 19, it must be
                 held to be wanting in that quality.” (Emphasis supplied)

      345
            1950 SCR 759
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            919
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

       200. State of Madras v V G Row 346 considered whether the                 A
action of the Tamil Nadu government in declaring an association 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:
                                                                                 B
        “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,        C
        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
Misra347 concerned a challenge to the second part of sub-section (6) of          D
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 whether a restriction is
        reasonable is to see …whether the restriction is in excess               E
        of the requirement or whether it is imposed in an arbitrary
        manner”.348 (Emphasis supplied)
       201. In Mohammed Faruk v State of Madhya Pradesh349a
Constitution Bench of this Court held that in determining the
proportionality of a measure restricting an individual’s right under Article
19(1)(g) of the Constitution, the factors to be taken into consideration         F
would include whether a less drastic restriction would have served the
purpose. As the Court held:
        “10…The Court must in considering the validity of the
        impugned law imposing a prohibition on the carrying on of
        a business or profession, attempt an evaluation of its direct            G
        and immediate impact upon the fundamental rights of the
        citizens affected thereby and the larger public interest
346
      1952 SCR 597
347
      (1969) 3 SCC 337
348
      Ibid, at page 345
349
      (1969) 1 SCC 853                                                           H
920               SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A             sought to be ensured in the light of the object sought to be
              achieved, the necessity to restrict the citizen’s freedom, [...],the
              possibility of achieving the object by imposing a less
              drastic restraint , [...] or that a less drastic restriction
              may ensure the object intended to be achieved.”350
              (Emphasis supplied)
B
      In Bishambhar Dayal Chandra Mohan v State of Uttar Pradesh351,
      “reasonable restriction” was held to mean that the limitation imposed on
      the enjoyment of a right should not be arbitrary or of an excessive nature,
      beyond what is required in the interests of the public.
             202. The decision in Om Kumar v Union of India352 concerned
C     the quantum of punishment imposed in departmental disciplinary
      proceedings. Justice M. Jagannadha Rao, speaking for a two judge Bench,
      defined proportionality in the following terms:
              “28. By ‘proportionality’, we mean the question whether, while
              regulating exercise of fundamental rights, the appropriate or least
D             restrictive choice of measures has been made by the
              legislature or the administrator so as to achieve the object of the
              legislation or the purpose of the administrative order, as the case
              may be. Under the principle, the Court will see that the legislature
              and the administrative authority ‘maintain a proper balance
E             between the adverse effects 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’. The legislature 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
F             excessively or not is for the Court. That is what is meant by
              proportionality.”353                 (Emphasis supplied)
                                                 354
      In Teri Oat Estates v U.T., Chandigarh , this Court adopted a similar
      interpretation of proportionality.
             203. In Modern Dental College and Research Centre v State
G     of Madhya Pradesh,355 a Constitution Bench of this Court while dealing
      350
            Ibid, at page 857
      351
            (1982) 1 SCC 39
      352
            (2001) 2 SCC 386
      353
            Ibid, at page 399
      354
            (2004) 2 SCC 130
H     355
            (2016) 7 SCC 353
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               921
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

with a challenge to the vires of the Madhya Pradesh Niji Vyavasayik                 A
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…Thus, while examining as to whether the impugned provisions
        of the statute and Rules amount to reasonable restrictions and are          B
        brought out in the interest of the general public, 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                   C
        sufficient conditions for limitation of a constitutionally
        protected right by a law to be constitutionally
        permissible...”356 (Emphasis supplied)
While expounding on the theory of proportionality, Justice AK Sikri
referred to Aharon Barak’s seminal book357 on proportionality:                      D
        “60…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          E
        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.”358                                                                  F
Justice Sikri held that laws limiting constitutional rights must satisfy the
test of proportionality:
        “63…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             G
        purpose, and such measures are necessary….359
356
      Ibid, at page 412
357
      Aharon Barak, Proportionality: Constitutional Rights and their Limitations,
      Cambridge University Press (2012)
358
      Ibid, at page 412
359
      Ibid, at page 414                                                             H
922               SUPREME COURT REPORTS                         [2018] 8 S.C.R.


A              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.”360
B
               (Emphasis supplied)
              204. In KSPuttaswamy v Union of India 361, one of us
      (Chandrachud J.), speaking for four judges, laid down the tests that would
      need to be satisfied under our Constitution for violations of privacy to be
      justified. This included the test of proportionality:
C              “325…A law which encroaches upon privacy will have to
               withstand the touchstone of permissible restrictions on
               fundamental rights. In the context of Article 21 an invasion of
               privacy must be justified on the basis of a law which stipulates a
               procedure which is fair, just and reasonable. The law must also
D              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
E              achieve them.”362
      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
F     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.
G
      Justice Sanjay Kishan Kaul, in his concurring opinion, suggested a four-
      pronged test as follows363:
      360
            Ibid, at page 415
      361
            (2017) 10 SCC 1
      362
            Ibid, at page 509
H     363
            Ibid, at para 638
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                           923
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

         “(i)The action must be sanctioned by law;                              A
         (ii) The proposed action must be necessary in a democratic
         society for a legitimate aim;
         (iii) The extent of such interference must be proportionate to the
         need for such interference;
         (iv) There must be procedural guarantees against abuse of such         B
         interference.”
The ‘test of proportionality’ is a judicially-entrenched principle which
has invigorated fundamental rights jurisprudence in the country.The
application of the proportionality standard in rights-based adjudication is
well-recognised across diverse jurisdictions.                                   C
H.3 Comparative jurisprudence
      205. Since some of the concerns raised by the Aadhaar scheme
have arisen for the first time in India, it would be appropriate to discuss
judgments of foreign jurisdictions which have inquired into the
proportionality of measures many of them similar to those prescribed            D
under the Aadhaar Act.
       206. The Privy Council formulated the parameters of
proportionality in Elloy de Freitas v Permanent Secretary of Ministry
of Agriculture, Fisheries, Lands and Housing,364 elaborating a three-
fold test:                                                                      E
         “whether: (i) the legislative objective is sufficiently important to
         justify limiting a fundamental right; (ii) the measures designed to
         meet the legislative objective are rationally connected to it; and
         (iii) the means used to impair the right or freedom are no more
         than is necessary to accomplish the objective.”                        F
Subsequently in Huang (FC) v Secretary of State for the Home
Department,365 the House of Lords added a fourth parameter which is
“the need to balance the interests of society with those of individuals
and groups.”
                                                                                G
      207.In the Federal Census Act Case (Volkszählungsurteil),366
the Federal Constitutional Court of the Federal Republic of Germany
dealt with a challenge to the German Federal Census Act, 1983, which
364
      [1999] 1 AC 69
365
      [2007] UKHL 11
366
      (1983) 65 BVerfGE 1                                                       H
924               SUPREME COURT REPORTS                                [2018] 8 S.C.R.


A     provided for collection of citizens’ basic personal information, including,
      inter alia, source of income, occupation, supplementary employment,
      educational background and hours of work. Certain provisions provided
      for transmission of statistical data to local governments for the purposes
      of regional planning, surveying, environmental protection, and redrawing
      of election districts. The Court struck down provisions permitting transfer
B
      of statistical data to local authorities 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-
C     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
D     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
E
                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 and a legal order that makes this
                possible would not be compatible with the right to informational
F               self-determination…This would not only restrict the possibilities
                for personal development of those individuals but also be
                detrimental to the public good since self-determination is an
                elementary prerequisite for the functioning of a free democratic
                society predicated on the freedom of action and participation of
                its members…The fundamental right guarantees in principle the
G
                power of individuals to make their own decisions as regards the
                disclosure and use of their personal data.”367
      367
            Jürgen Bröhmer et al., “BVerfGE 65, 1 - Census Act” in 60 Years German Basic
            Law: The German Constitution and its Court - Landmark Decisions of the Federal
            Constitutional Court of Germany in the Area of Fundamental Rights (Suhainah
            Wahiduddin ed.),(2012) at Pages 147-148, available at http://www.kas.de/wf/doc/
H           kas_32858-1522-1-30.pdf?121123115540
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            925
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

The Court, while recognizing the right to informational self-determination,      A
observed that distinct silos of data “can be pieced together with other
data collections particularly when individual integrated information
systems are built up – to add up to a partial or virtually complete
personality profile,” and that too with, “the person concerned having no
means of controlling its truth and application.”368 Of crucial importance
                                                                                 B
is the Court’s observation that the right to informational self-
determination is particularly endangered because in reaching decisions,
one no longer has to rely on manually collected registries and files.
Today, the technical means of storing individual statements about personal
or factual situations of a certain or verifiable person with the aid of
automatic data processing are practically unlimited and can be retrieved         C
in a matter of seconds irrespective of distances.369
The Court noted, however, that the right to informational self-
determination is not absolute and that public sector entities could collect
personal data under certain conditions. The Court held that there must
be a statutory basis for this informational activity, and that it must satisfy   D
the principle of proportionality. On the need for a statutory basis, the
Court held that:
          “The use of the data is limited to the purpose specified by law. If
          for no other reason than because of the dangers associated with
          automated data processing, protection is required against              E
          unauthorized use - including protection against such use by other
          governmental entities - through a prohibition on the transfer and
          use of such data”370
          “Clearly defined conditions must be created for processing to
          ensure that individuals do not become mere data subjects in the        F
          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    G
          of the constitutionally guaranteed right to informational self-
          determination.”371
368
      Census Act Case, (1983)
369
      Census Act Case, (1983)
370
      Ibid, at page 150.
371
      Ibid, at page 151                                                          H
926              SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     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
B            from interference by the state, may be restricted by the public
             powers in any given case only insofar as indispensable for the
             protection of public interests … In view of the threats described
             above that arise from the use of automated data processing, the
             legislature must more than was the case previously, adopt
             organizational and procedural precautions that work counter to
C            the threat of violation of the right of personality …”372
             “The survey program of the 1983 Census Act also satisfies, to the
             extent relevant to the matter under review, the principle of
             proportionality. A measure to achieve the intended purpose must
             therefore be suitable and necessary; the intensity of the attendant
D            action may not be disproportionate to the importance of the matter
             and the compromises imposed upon the public.”373
      The Court concluded that according to the principles of purpose
      specification and proportionality, not only must the purpose for which
      data is being collected be specified at the time of collection, but the data
E     acquired must also not exceed that which is absolutely necessary for
      accomplishing the specified purpose. In light of this, the Court directed
      the German Parliament to amend the law in certain particulars before
      the census could be carried out, and to close all loopholes in the law that
      may lead to abuses in the collection, storage, use and transfer of personal data.
             208. The ECtHR dealt with whether retention of DNA samples
F     of individuals who were arrested but who were later acquitted or had
      charges against them dropped was a violation of the right to privacy. In
      S and Marper v United Kingdom,374 the ECtHR noted the “blanket
      and indiscriminate nature of the power of retention”:
             “The material may be retained irrespective of the nature or gravity
G            of the offence with which the individual was originally suspected
             or of the age of the suspected offender; fingerprints and samples
             may be taken—and retained—from a person of any age, arrested
             in connection with a recordable offence, which includes minor or
      372
            Ibid, at page 149
      373
            Ibid, at page 154
H     374
            (2008) 48 EHRR 1169
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                       927
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

       non-imprisonable offences. The retention is not time-limited; the                    A
       material is retained indefinitely whatever the nature or seriousness
       of the offence of which the person was suspected. Moreover,
       there exist only limited possibilities for an acquitted individual to
       have the data removed from the nationwide database or the
       materials destroyed; in particular, there is no provision for
                                                                                            B
       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.”375
The Court concluded that the retention constituted a disproportionate
interference with the Applicants’ right to privacy:                                         C
       “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                      D
       respondent State has overstepped any acceptable margin of
       appreciation in this regard. Accordingly, the retention at issue
       constitutes a disproportionateinterference with the
       applicants’ right to respect for private life and cannot be
       regarded as necessary in a democratic society…”
       (Emphasis supplied)                                                                  E
The Court rejected the government’s arguments that fingerprints
constituted neutral, objective, irrefutable and unintelligible material, holding
that they contained unique information about an individual, allowing their
precise identification in certain circumstances. The Court concluded that
the collection of fingerprints was therefore capable of affecting private                   F
life, and retention of such information without consent “cannot be
regarded as neutral or insignificant.”
       209. In 2012, the French Constitutional Council (“Council”) – the
body that reviews the constitutionality of French laws – declared four
provisions of the Identity Protection Act, which proposed the introduction                  G
of a new national biometric ID for citizens, to be unconstitutional. 376
375
      Ibid, at Paragraph 119
376
      Decision No. 2012-652 DC of 22 March 2012 by Le Conseil Constitutionnel,
      available at http://www.conseil-constitutionnel.fr/conseil-constitutionnel/english/
      case-law/sample-of-decisions-in-relevant-areas-dc/decision/decision-no-2012-652-
      dc-of-22-march-2012.105428.html                                                       H
928             SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     Articles 3 and 5 were among the provisions that were struck down.
      Article 3 authorized that the national ID card may contain data which
      would enable the holder to identify himself or herself on electronic
      communication networks or use his or her electronic signature. The Article
      stated that:
B              “If requested by its holder, the national identity card may also
               contain data, stored separately, enabling it to identify itself on
               electronic communication networks and to affix its electronic
               signature. Upon each use, the interested party shall decide which
               identification data are to be transmitted electronically.”
      The Council observed that Article 3 did not stipulate the nature of the
C     data that was being collected, nor did it provide any guarantee of
      maintaining confidentiality. Thus, the Council declared Article 3 to be
      unconstitutional:
               “that the provisions of Article 3 do not specify either the nature
               of the “data” through which these functions may be implemented
D              or the guarantees ensuring the integrity and confidentiality of
               this data; that they do not define in any greater detail the conditions
               under which the persons implementing these functions are to be
               authenticated, especially when they are minors or are subject to
               legal protection; that accordingly, Parliament acted in excess of
E              its powers; that accordingly Article 3 must be ruled
               unconstitutional;”
      Article 5 allowed for the establishment of a database of personal
      information which would include, in addition to the marital status and
      residence of the holder, their height, eye colour, fingerprints and
      photograph for the issuance of French passports and national ID cards
F     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,
G     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
H     Council held that the liberty proclaimed by Article 2 includes the right to
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                        929
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

respect for private life, and accordingly, that “the collection, registration,               A
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 Article 5
violated the French Constitution as the nature of the data collected was
such that it would facilitate the identification of French citizens on the
                                                                                             B
basis of their fingerprints, thus breaching the right to respect for private life:
          “Considering however that, given its object, this database
          containing personal data is intended to collect data relating to
          almost all of the population of French nationality; that since the
          biometric data registered in this file, including in particular
          fingerprints, are themselves liable to be compared with                            C
          physical traces left involuntarily by an individual or
          collected unbeknown to him, they are particularly
          sensitive; that the technical characteristics of this database
          as defined by the contested provisions enable it to be
          consulted for purposes other than the verification of an                           D
          individual’s identity; that the provisions of the act referred
          authorise this database to be consulted or viewed not only in
          relation to the issue or renewal of identity and travel documents
          or to verify the holder of such a document, but also for other
          purposes of an administrative nature or by the investigating
          police;…                                                                           E
          …having regard to the nature of the data registered, the scope
          of this processing, its technical characteristics and the conditions
          under which it may be consulted, the provisions of Article 5 violate
          the right to respect for privacy in a manner which cannot be
          regarded as proportionate to the goal pursued; that accordingly,                   F
          Articles 5 and 10 of the act must be ruled unconstitutional…”
          (Emphasis supplied)
Subsequently, Law 2012-410 of March 27, 2012, on Identity Protection
was published in the official gazette of France, without Articles 3 and 5,
which had been rendered unconstitutional by the Council. 377                                 G
                                        378
      210. Aycaguer v France concerned the applicant’s refusal to
undergo biological testing, the result of which was to be included in the
377
      LOI n° 2012-410 du 27 mars 2012 relative à la protection de l’identité, available at
      https://www.legifrance.gouv.fr/affich Texte .do ? cid Texte = JORFTEXT
      000025582411&dateTexte=&categorieLien=id.
378
      Application no. 8806/12                                                                H
930               SUPREME COURT REPORTS                                    [2018] 8 S.C.R.


A     national computerised DNA database. As a result of his refusal, he was
      convicted. The ECtHR held that the regulations on the storage of DNA
      profiles did not provide individuals with sufficient protection, due to its
      duration and the fact that the data 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
B
      had been a violation of Article 8 (right to respect for private life) of the
      European Convention on Human Rights.
             211. The Conseil d’Etat379 in Association pour la promotion
      de l’image380 was asked whether a decree regulating the use and storage
      of data from biometric passports was lawful. One of the stipulations of
C     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.
D            212. In Digital Rights Ireland Ltd v Minister,381 the Court of
      Justice of the European Union held that the EU legislature had exceeded
      the limits of the principle of proportionality in relation to certain provisions
      of the Charter of Fundamental Rights of the European Union – Articles
      7, 8 and 52(1) – by adopting the Data Retention Directive. According to
E     the Directive, member states were obliged to store citizens’
      telecommunications data for a minimum of 6 months and a maximum of
      24 months. The Directive empowered police and security agencies to
      request access to details such as IP address and time of use of all e-
      mails, phone calls and text messages sent or received.

F     The Court appliedthe test of proportionality to the measures. It was
      noted that metadata allows officials to make precise conclusions about a
      person’s private life, and dragnet data collection creates a chilling effect
      based on the sense that one’s life is subject to surveillance at all times.
      On the nature of metadata, the Court observed that:

G               “Taken as a whole, [metadata] may allow very precise
                conclusions to be drawn concerning the private lives of the
      379
            The 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
      380
            Conseil d’ Etat in France, 26 October 2011
      381
H           C 293/12 and C 594/12
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             931
                 [DR.[ASHOK
                      D. Y. CHANDRACHUD,
                              BHUSHAN, J.] J.]

          persons whose data has been retained, such as the habits of             A
          everyday life, permanent or temporary places of residence, daily
          or other movements, the activities carried out, the social
          relationships of those persons and the social environments
          frequented by them.”382
The Court found that surveillance serves an important public interest –           B
public security – and that the right to security is itself a fundamental
right under Article 6 of the Charter.383 However, the Court adopted a
two-pronged proportionality test to conclude that the Directive’s retention
and access requirements were not proportional to that interest.
          “…According to the settled case-law of the Court, the principle         C
          of proportionality requires that acts of the EU institutions be
          appropriate for attaining the legitimate objectives pursued by the
          legislation at issue and do not exceed the limits of what is
          appropriate and necessary in order to achieve those
          objectives.”384
                                                                                  D
The retention measure was held to be unnecessary to fulfill the objective
of fighting against serious crime:
          “As regards the necessity for the retention of data required by
          Directive 2006/24, it must be held that the fight against serious
          crime, in particular against organised crime and terrorism, is indeed   E
          of the utmost importance in order to ensure public security and
          its effectiveness 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                 F
          necessary for the purpose of that fight. (Emphasis
          supplied)”385
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         G
Directive was overbroad because it applied to all data, regardless of the

382
      Ibid, at para 27
383
      Ibid, at para 42
384
      Ibid, at para 46
385
      Ibid, at para 51                                                            H
932               SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A     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
B               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 provided for and a threat to public security
                and, in particular, it is not restricted to a retention in relation (i) to
C               data pertaining to a particular time period and/or a particular
                geographical zone and/or to a circle of particular persons likely
                to be involved, in one way or another, in a serious crime, or (ii) to
                persons who could, for other reasons, contribute, by the retention
                of their data, to the prevention, detection or prosecution of serious
                offences.”386
D
                “Not only is there a general absence of limits in Directive 2006/
                24 but Directive 2006/24 also fails to lay down any objective
                criterion by which to determine the limits of the access of the
                competent national authorities to the data and their subsequent
                use for the purposes of prevention, detection or criminal
E               prosecutions concerning offences that, in view of the extent and
                seriousness of the interference with the fundamental rights
                enshrined in Articles 7 and 8 of the Charter, may be considered
                to be sufficiently serious to justify such an interference. On the
                contrary, Directive 2006/24 simply refers, in Article 1(1), in a
F               general manner to serious crime, as defined by each Member
                State in its national law.”387
      The Court concluded that the Directive failed to set out “clear and precise
      rules”388 for access or for how states should judge the period of time for
      which data should be held, and “entails a wide-ranging and
G     particularly serious interference with those fundamental rights in the legal
      order of the EU, without such an interference being precisely
      circumscribed by provisions to ensure that it is actually limited to what is
      386
            Ibid, at paras 57-59
      387
            Ibid, at para 60
      388
            Ibid, at para 54
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              933
                 [DR.[ASHOK
                      D. Y. CHANDRACHUD,
                              BHUSHAN, J.] J.]

strictly necessary.”389 The Court struck down the Directive on the basis           A
of the scope of the data to be retained,390 the lack of limits imposed on
state access,391 and the failure to distinguish between the treatment of
data based on its usefulness and relevance.392
Of crucial importance is the Court’s emphasis that the judicial review of
the EU legislature’s discretion “should be strict” because of “the important       B
role played by the protection of personal data in the light of the
fundamental right to respect for private life and the extent and seriousness
of the interference with that right caused by Directive 2006/24”.393 In
addition, 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               C
necessary’.394
       213. In Michael Schwarz v Stadt Bochum,395 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.           D
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.396                            E
          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            F
          into the European Union.397
          In those circumstances, the arguments put forward by the
          referring court concerning the risks linked to possible centralisation
389
      Ibid, at para 65
390
      Ibid, at paras 56 –58                                                        G
391
      Ibid, at paras 60-62
392
      Ibid, at paras 59, 63– 64
393
      Ibid, at para 48
394
      Ibid, at para 51
395
      [2013] EUECJ C-291/12
396
      Ibid, at para 60
397
      Ibid, at para 61                                                             H
934              SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A               cannot, in any event, affect the validity of that regulation and
                would have, should the case arise, to be examined in the
                course of an action brought before the competent courts
                against legislation providing for a centralised fingerprint
                base. In the light of the foregoing, it must be held that Article
                1(2) of Regulation No 2252/2004 does not imply any processing
B
                of fingerprints that would go beyond what is necessary in order
                to achieve the aim of protecting against the fraudulent use of
                passports. It follows that the interference arising from Article
                1(2) of Regulation No 2252/2004 is justified by its aim of protecting
                against the fraudulent use of passports.”398
C     The Court held that although the taking and storing of fingerprints in
      passports constituted an infringement of the right to respect for private
      life and the right to protection of personal data, Article 1(2) of Regulation
      No 2252/2004 did not imply any processing of fingerprints that would go
      beyond what is necessary in order to achieve the aim of protecting against
D     the fraudulent use of passports and was therefore valid.
            214. In Madhewoo v The State of Mauritius,399 the Judicial
      Committee of the Privy Council heard an appeal from a judgment of the
      Supreme Court of Mauritius regarding the constitutionality of the
      provisions of The National Identity Card (Miscellaneous Provisions) Act,
E     2013. The Act required biometric information including fingerprints, to
      be stored in a central register in which particulars of the identity of
      every citizen of Mauritius were to be recorded.
      The Supreme Court upheld provisions of the Act that provided for the
      compulsory taking of fingerprints. However, the Court struck down those
F     provisions that provided for the biometric data to be stored in a central
      register. The Appellant appealed to the Committee, contending that the
      provisions providing for the compulsory taking of fingerprints should also
      be struck down as unconstitutional.
      The appellant challenged the following provisions of the Act: (i) the storage
G     of data in a register in electronic data under Section 3; (ii) the obligation
      to provide biometric information under Section 4; (iii) the collection of
      information, in electronic form, for a national ID card under Section 5;
      (iv) the compulsory production of an identity card to a policeman under
      Section 7(1A) in response to a request under Section 7(1)(b); and (v)
      398
            Ibid, at para 62
H     399
            [2016] UKPC 30
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             935
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

the gravity of the potential penalties for non-compliance under Section           A
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            B
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        C
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 Kingdom400:
          “In addressing the question whether section 4(2)(c) of the 1985         D
          Act (as amended) was reasonably justifiable in a democratic
          society the Supreme Court drew on jurisprudence of the European
          Court of Human Rights in S v The United Kingdom…In substance
          the Court asked whether the measure pursued a legitimate aim,
          whether the reasons given by the national authorities for the           E
          interference in pursuit of that aim were relevant and sufficient,
          and whether the measure was proportionate to the aim pursued.
          This evaluation is essentially the same as that adopted by the
          courts in the United Kingdom in relation to article 8(2) of the
          ECHR, in which the courts ask themselves (a) whether the
          measure is in accordance with the law, (ii) whether it pursues a        F
          legitimate aim, and (iii) whether the measure will give rise to
          interferences with fundamental rights which are disproportionate,
          having regard to the legitimate aim pursued. In relation to (iii),
          the courts ask themselves: (a) whether the objective is sufficiently
          important to justify a limitation of the protected right, (b) whether   G
          the measure is rationally connected to the objective, (c) whether
          a less intrusive measure could have been used without
          compromising the achievement of the objective (in other words,
          whether the limitation on the fundamental right was one which it
          was reasonable for the legislature to impose), and (d) whether
400
      [2008] ECHR 1581                                                            H
936               SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A               the impact of the infringement of the protected rights is
                disproportionate to the likely benefit of the measure”
      The Committee reproduced the Mauritian Supreme Court’s holding that
      the provisions of the Act which enforced the compulsory taking and
      recording of fingerprints interfered with the Appellant’s rights guaranteed
B     under section 9(1) of the Constitution,401 but that the law was justifiable
      on grounds of public interest and public order:
                “We find that it can hardly be disputed that the taking of fingerprints
                within the applicable legal framework pursues the legitimate
                purpose of establishing a sound and secure identity protection
C               system for the nation and thus answers a pressing social need
                affording indispensable protection against identity fraud. Such a
                purpose, as has been amply demonstrated, is vital for proper law
                enforcement in Mauritius. Furthermore, taking into consideration
                the appropriate safeguards in the taking of fingerprints for their
                insertion in the cards, and the relatively limited degree of
D               interference involved, we are led to conclude that such
                interference is proportionate to the legitimate aim pursued.”402
      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
E     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
F     pursued” were not established.403 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 disproportionate to the legitimate aim which the
G
                defendants have claimed in order to justify the retention and
                storage of personal data under the Data Protection Act.”404
      401
            Maharajah Madhewoo v. The State of Mauritius & Anr., 2015 SCJ 177, at page 23
      402
            [2016] UKPC 30, at page 10
      403
            Ibid, at page 31
H     404
            Ibid, at page 33
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                           937
                  [DR.[ASHOK   BHUSHAN, J.] J.]
                        D. Y. CHANDRACHUD,

Thus, while the Supreme Court noted that the law providing for the                              A
storage and retention of personal biometric data constituted a permissible
derogation under Section 9(2) of the Constitution,405 it held that since the
Respondent had not established that provisions dealing with storage and
retention were reasonably justifiable in a democratic society, they were
unconstitutional.
                                                                                                B
The Judicial Committee did not interfere with the Supreme Court’s
decision. However, it noted an inconsistency in the Supreme Court’s
order wherein it held that the law providing for the storage and retention
of fingerprints and other biometric data constitutes a permissible
derogation under section 9(2) of the Constitution, whilst simultaneously
holding the same provisions to be unconstitutional. The Committee                               C
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.”                             D
          (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 data406’ is defined in the General Data Protection Regulation thus:                  E

405
      Article 9. Protection of privacy of home and other property: (2) Nothing contained
      in or done under the authority of any law shall be held to be consistent with or in
      contravention of this section to the extent that the law in question makes provision
      - (a) in the interests of defence, public safety, public order, public morality, public
      health, town and country planning, the development or utilisation of mineral              F
      resources or the development or utilisation of any other property in such a manner
      as to promote the public benefit; (b) for the purpose of protecting the rights or
      freedoms of other persons; (c) to enable an officer or agent of the government or a
      local authority, or a body corporate established by law for public purpose, to
      enter on the premises of any person in order to value those premises for the
      purpose of any tax, rate or due, or in order to carry out work connected with any
      property that is lawfully on those premises and that belongs to the government,           G
      the local authority or that body corporate, as the case may be; or (d) to authorise,
      for the purpose of enforcing the judgement or order of a court in any civil
      proceedings, the search of any person or property by order of a court or the entry
      upon any premises by such order, Except so far as that provision or, as the case
      may be, the thing done under its authority is shown not to be reasonably justifiable
      in a democratic society
406
      Article 4(14)                                                                             H
938              SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A               “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.”
B     The learned Attorney General cited the following judgments of the US
      Supreme Court: Vernonia School District 47J v Acton (“Acton”),407
      Skinner v Railway Labor Executives’ Association (“Skinner”),408
      Whalen v Roe (“Whalen”), 409 United States v Dionisio
      (“Dionisio”)410 and Bowen v Roy (“Bowen”).411 Only Acton, Skinner
      and Dionisio were decided in the context of biometrics, which as we
C     have found before, forms the bedrock of the Aadhaar program. In Acton,
      the court held that the action of the authorities conducting random drug
      testing of high school athletes was legal since the conditions of collection
      were nearly identical to those typically encountered in public restrooms.
      As a result, it was found that, privacy interests of the students were
D     negligibly affected. In Skinner, the court found the actions of the Federal
      Railroad Administration (“FRA”) requiring mandatory blood and urine
      testing of employees involved in train accidents to be constitutional. The
      court observed that railroad accidents, if not prevented, could cause
      massive loss of life and property. Further, it was held that FRA’s
      regulations fulfilled a “special need” because of the interest of the
E     government in ensuring safety of railroads and were therefore, not “an
      undue infringement on the justifiable expectations of privacy of covered
      employees”. In Whalen, theCourtfound that retention of patients’
      information such as their name, address and age, under the New York
      State Controlled Substances Act, 1972, was not in violation of the
F     constitutional right to privacy as the Court was satisfied that the statute
      provided for proper safeguards and redressal against theft and loss of
      information. In Dionisio, the Court found no constitutional infirmity with
      the issuance of a subpoena to procure voice recording exhibits by tapping
      telephones in order to investigate crimes. The Court held that “neither
      the summons to appear before the grand jury, nor its directive to make a
G     voice recording, infringed upon any interest protected by the Fourth
      407
            515 U.S. 646 (1995)
      408
            489 U.S. 602 (1989)
      409
            429 U.S. 589 (1977)
      410
            410 U.S. 1 (1973)
      411
            476 U.S. 693 (1986)
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                          939
                  [DR.[ASHOK   BHUSHAN, J.] J.]
                        D. Y. CHANDRACHUD,

Amendment”. The Court observed that a compelled display of identifiable        A
physical characteristics does not infringe upon an “interest protected by
the privilege against compulsory self-incrimination”. In Bowen, the Court
upheld the provisions of a welfare scheme which required citizens to
furnish their social security number, rejecting the argument that the use
of a social security number violated the Appellant’s Native American
                                                                               B
beliefs. The Court held that the Free Exercise Clause of the First
Amendment could not be construed to place a requirement on the
government to conduct its internal affairs in consonance with the religious
beliefs of particular citizens.
In In re Crawford,412 the Ninth Circuit upheld provisions of the
Bankruptcy Code which mandated public disclosure of a Bankruptcy               C
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                 D
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”), 413 Utility Workers Union of America v Nuclear
Regulatory Commission (“UWUA”),414 Nicholas A Iacobucci v City
of Newport (“Iacobucci”),415 Thom v New York Stock Exchange                    E
(“Thom”), 416 Perkey v Department of Motor Vehicles
(“Perkey”),417Buchanan v Wing (Buchanan),418 People v Stuller
(“Stuller”), 419 United States v Kelly (“Kelly”) 420 and Brown v
Brannon (“Brannon”).421 At first blush, it does seem that these cases
support the Respondents’ stand, however, we cannot lose sight of the
context in which the courts came to the conclusion emphasised by the           F
respondents in support of their submissions. In Haskell, the Ninth Circuit
found a Californian law which authorized law enforcement officers to
412
      194 F.3d 954 (9th Cir. 1999)
413
      669 F.3d 1049 (9th Cir. 2012)
414
      664 F. Supp. 136 (S.D.N.Y. 1987)                                         G
415
      785 F.2d 1354 (6th Cir. 1986)
416
      306 F. Supp. 1002 (S.D.N.Y. 1969)
417
      (1986) 42 Cal. 3d 185
418
      N.Y.S.2d 865
419
      10 Cal. App.3d 582 (1970)
420
      55 F.2d 67 (2d Cir. 1932)
421
      399 F. Supp. 133 (M.D.N.C. 1975)                                         H
940             SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     collect DNA in the form of a sample from the buccal swab of the mouth
      of felony arrestees, who had not been convicted, to be constitutional.
      The Court noted that the arrestees had reduced privacy interests; the
      physical intrusion of collecting a buccal swab was de minimis in nature;
      there were stringent limits on the manner in which the information was
      to be used; and the interest of the State in deterring future criminal acts
B
      to exculpate innocent arrestees aided in prison administration and law
      enforcement. For the above reasons, the Court found that the infringement
      of privacy of the felony arrestees was justified. In UWUA, the Ninth
      Circuit ruled that a law requiring individuals working in nuclear power
      facilities to submit their fingerprints for identification and criminal history
C     record checks was not unconstitutional. In Iacobucci, an ordinance which
      required employees of liquor selling establishments which permitted nude
      dancing, to be fingerprinted and photographed by the police department,
      was held constitutional. The Court observed that fingerprinting and
      photographing of employees of retail liquor establishments bore a rational
      relationship to the legitimate aim of elimination of crime. In Thom, a
D
      New York statute, which as a condition of employment, required all the
      employees of member firms of national stock exchanges to be
      fingerprinted, was upheld. The Court ruled that fingerprinting was a
      necessary means of verifying the existence or non-existence of a prior
      criminal record, in order to avert any threat posed by an employee who
E     was in a position to commit theft of securities. In Perkey, the Californian
      Supreme Court upheld the actions of the state mandating an individual to
      provide a fingerprint in order to obtain a driver’s license. The Court held
      that fingerprint technology was the only reliable means of ensuring the
      integrity of the records of the department of motor vehicles as other
      methods such as handwriting specimens and photographs were not
F
      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
G     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
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            941
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

of employees” to undergo fingerprinting in order to protect “visitors and     A
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
that there was no reason to interfere with a method of identifying persons
                                                                              B
“charged with a crime”. In Brannon, the court held that a law requiring
“massagists” to submit their fingerprints, photographs and reports of
their medical examinations in order to obtain licenses was valid, noting
that the fingerprints and photographs would aid in their identification as
well as in the enforcement of criminal statutes relating to public morality
and decency.                                                                  C
       217. The cases cited by the learned Attorney General would not
be applicable in the context of the Aadhaar program. The cases cited
dealt with narrowly tailored legislations set out to achieve very specific
objectives. For instance, courts upheld statutes aimed at protecting a
nuclear facility or to prevent theft of securities, where incidents of        D
sabotage or breach of security would have led to national disasters.
These national disasters in turn would have resulted in the immediate
loss of human life or in a situation of financial emergency. Such laws,
were therefore, enacted in order to assuage security concerns which, if
not implemented, could lead to incidents of massive losses of life and
property.                                                                     E

Some of the statutes upheld, permitted collection of DNA samples,
fingerprints and photographs for identification. The objective behind these
laws was prevention of crime, albeit on a comparatively smaller scale.
Moreover, the courts in these cases were also satisfied that the procedures
involved in collecting biometrics were not invasive enough to strike them     F
down as unconstitutional or that there were adequate safeguards to
prevent misuse.
The aforementioned cases will not apply in the backdrop of the Aadhaar
program because they were rendered broadly in the context of prevention
of crime. It needs no reiteration that an entire population cannot be         G
presumed to be siphoning huge sums of money in welfare schemes or
viewed through the lens of criminality, and therefore, considered as having
a diminished expectation of privacy. The judgments cited by the
respondents which were decided in the context of crime, require the
State to at least form a reasonable belief about the criminal antecedents     H
942             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     of individuals or their potential to commit crimes. On the contrary, by
      collecting identity information, the Aadhaar program treats every citizen
      as a potential criminal without even requiring the State to draw a
      reasonable 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
B
      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:
C
        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
D             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;
E       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 protection of centrally stored data. In order to prevent
              arbitrary or abusive interference with privacy, the State must
F             guarantee that the collection and use of personal information is
              based on the consent of the individual; that it is authorised by
              law and that sufficient safeguards exist to ensure that the data is
              only used for the purpose specified at the time of collection.
              Ownership of the data must at all times vest in the individual
              whose data is collected. The individual must have a right of access
G
              to the data collected and the discretion to opt out.
             219. Privacy and proportionality are two interlocking themes that
      recur consistently in the above judgements. Privacy, also construed as
      “informational self-determination”, is a fundamental value. There is a
      consistent emphasis on the impact on personal dignity if private information
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                943
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

is widely available and individuals are not able to decide upon its disclosure    A
and use. This right of controlling the extent of the availability and use of
one’s personal data is seen as a building block of data protection -
especially in an environment where the state of technology facilitates
ease of collection, analysis and dissemination of information.
       220. The blanket and indiscriminate collection of information is           B
seen as a violation of privacy, which is a constituent of the right to liberty.
An extensive power to retain collected data is also seen as a
disproportionate interference with the right to privacy and not necessary
in a democratic society. The judgments hold that unlimited data retention
and unrestricted state access both constitute a disproportionate
interference with privacy and data protection. They also emphasize the            C
need to clearly stipulate the nature of the data being collected and ensure
its confidentiality. Provisions where these principles are not respected
cannot be regarded as valid. While courts do recognize the need for
public order and security, they emphasize the need to strike a balance
between safeguarding public order and the right to privacy.                       D
       221. The principle of proportionality also recurs through these
judgments, which note that the collection and use of information must be
limited to the purpose specified by law and to the extent indispensable
for the protection of public interest. The striking of a balance between
public and private interests is crucial to proportionality. The judgments         E
hold 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            F
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            G
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
944             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     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 transparent and efficient “targeted delivery
      of subsidies, benefits and services”. However, the Act in the present
B     form has surpassed a tailored objective and has sought to administer
      every facet of the citizen-state engagement through mandatory biometric-
      enabled Aadhaar linking. The violations of fundamental rights that result
      from the operation of the Aadhaar scheme will have to be evaluated on
      the touchstone of legitimate state interest and proportionality.
C     Since biometric systems have been employed, it is fundamental to
      understand that the right to privacy and its protection must be at the
      centre of the debate, from the very onset of the decision to use biometric
      data. It is vital that adequate safeguards are set down for every step of
      the process from collection to retention of biometric data. At the time of
      collection, individuals must be informed about the collection procedure,
D     the intended purpose of the collection, the reason why the particular
      data set is requested and who will have access to their data. Additionally,
      the retention period must be justified and individuals must be given the
      right to access, correct and delete their data at any point in time, a
      procedure familiar to an opt-out option. The intended purpose should
E     always act as a shining light and adequate caution must be taken to
      ensure that there is no function creep with the lapse of time, in order to
      prevent the use of the data for new, originally unintended purposes.
      Measures to protect privacy would include enacting more entrenched
      and specific legislation so that the right to privacy is not only recognized
      but protected in all its aspects. Meeting this obligation would necessarily
F     mean enactment of data protection legislation as well. The choice of
      particular techniques and the role of components in the architecture of
      the technology also have a strong impact on the privacy protections
      provided by the biometric system.
      During the course of the hearing, the CEO of UIDAI, Mr Ajay Bhushan
G     Pandey was permitted on the request of the learned Attorney General to
      make a power-point presentation before the Court, explaining the
      architecture and working of the Aadhaar project. On the basis of the
      presentation, Mr Shyam Divan, counsel for the petitioners had served a
      list of questions to the respondents. Responses to these questions have
H     been filed by UIDAI. Analysing the power-point presentation by the
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               945
               [DR.[ASHOK   BHUSHAN, J.] J.]
                     D. Y. CHANDRACHUD,

CEO, questions addressed by Mr Divan and the responses filed by the              A
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             B
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              C
        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              D
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 authentication of an Aadhaar number
holder is performed as a “one to one” biometric match against the
biometric information of the Aadhaar number holder in CIDR. Based on
the match, UIDAI provides a ‘yes’ or ‘no’response. Whether the                   E
information which is entering into CIDR is correct or not is a task
entrusted to the enrolling agency or the Registrars. UIDAI does not
assume responsibility for it.
The task of verifying whether a person is an illegal resident has also
been left to the enrolling agencies. At the stage of enrolment, a verification   F
of whether a person has been residing in India for 182 days or more in
the past twelve months is done on the basis of a ‘self-declaration’ of the
individual. The declaration which has been provided in the Aadhaar
enrolment forms is thus:
        “Disclosure under section 3(2) of The Aadhaar (Targeted                  G
        Delivery of Financial and Other Subsidies, Benefits and Servìces
        Act, 2016
        I confirm that I have been residing in India for at least 182 days
        in the preceding 12 months & information (including biometrics)
        provided by me to the UIDAI Ìs my own and is true, correct and           H
946            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A             accurate. I am aware that my information including biometrics
              will be tested for generation of Aadhaar and authentication. I
              understand that my identity 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
B
              biometrics) following the procedure laid down by UIDAI.”422
            224. The petitioners have argued that persons who were enrolled
      under the Aadhaar programme before the Act came into force on 12
      September 2016 (more than a hundred crore) were not even required to
      make this declaration. The authenticity of the documents submitted (along
C     with the declaration) is not checked by UIDAI.
      The exception handling process permitting the use of alternative modes
      of identification if the Aadhaar authentication fails, is also left to the
      discretion of the Requesting Entity. On this aspect, the response which
      has been provided to the Court is thus:
D
              “As per Regulation 14(i) of Aadhaar (Authentication) Regulations
              2016, requesting entities shall implement exception-handling
              mechanisms and back-up identity authentication mechanisms to
              ensure seamless provision of authentication services to Aadhaar
              number holders. Therefore, this exception handling mechanism
E             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
F     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
G     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.
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                        947
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

       225. The Aadhaar architecture incorporates the role of                A
Authentication User Agencies (AUAs) and Authentication Service
Agencies (ASAs). ASAs, under the Aadhaar (Authentication)
Regulations, have been defined as entities providing necessary
infrastructure for ensuring secure network connectivity and related
services for enabling a requesting entity to perform authentication using
                                                                             B
the authentication facility provided by UIDAI.423 AUAs have been
defined under the Aadhaar (Authentication) Regulations as requesting
entities that use the Yes/No authentication facility provided by UIDAI.424
“Yes/No authentication facility” is a type of authentication facility in
which the identity information and Aadhaar number securely submitted
with the consent of the Aadhaar number holder through a requesting           C
entity, are matched against the data available in the CIDR, and the
Authority responds with a digitally signed response containing a “Yes”
or “No”, along with other technical details related to the authentication
transaction, excluding identity information. 425 The other type of
authentication facility is the e-KYC authentication facility, in which the
                                                                             D
biometric information and/or OTP and Aadhaar number securely
submitted with the consent of the Aadhaar number holder through a
requesting entity, are matched against the data available in the CIDR,
and the Authority returns a digitally signed response containing e-KYC
data along with other technical details related to the authentication
transaction. A requesting entity which, in addition to being an AUA, uses    E
e-KYC authentication facility provided by UIDAI is called a “e-KYC
User Agency” or “KUA”.426 Under Regulation 15(2), a requesting
agency may permit any other agency or entity to perform Yes/ No
authentication by generating and sharing a separate license key for every
such entity through the portal provided by UIDAI to the said requesting
                                                                             F
entity. It has also been clarified that sharing of a license key is only
permissible for performing Yes/ No authentication, and is prohibited in
case of e-KYC authentication.427
The petitioners have contended that the points of service (PoS) biometric
readers are capable of storing biometric information. The response which
UIDAI has provided is extracted below:                                       G

423
      Regulation 2(f), Aadhaar (Authentication) Regulations
424
      Regulation 2(g), Aadhaar (Authentication) Regulations
425
      Regulation 2(p), Aadhaar (Authentication) Regulations
426
      Regulation 2(l), Aadhaar (Authentication) Regulations
427
      Regulation 15, Aadhaar (Authentication) Regulations                    H
948            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A             “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
B
              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
C             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.
D     Regulation 17(1)(c) allows the requesting entity to store the PID block
      when “it is for buffered authentication where it may be held temporarily
      on the authentication device for a short period of time, and that the same
      is deleted after transmission”. Thus, under the Aadhaar project, requesting
      entities can hold the identity information of individuals, even if for a
      temporary period.
E
      It was further contended by the petitioners that authentication entities in
      the Aadhaar architecture are capable of recording the date and time of
      the authentication, the client IP, the device ID and purpose of
      authentication. In response, UIDAI stated that it does not ask requesting
      entities to maintain any logs related to the IP address of the device, GPS
F     coordinates of the device and purpose of authentication. It was, however,
      admitted that in order to ensure that their systems are secure and frauds
      are managed, AUAs like banks and telecom providers may store
      additional information according to their requirement to secure their
      system.
G           227. The process of sending authentication requests has been dealt
      with in Regulation 9 of the Aadhaar (Authentication) Regulations. It
      provides that after collecting the Aadhaar number or any other identifier
      provided by the requesting entity which is mapped to the Aadhaar number
      and necessary demographic and / or biometric information and/ or OTP
      from the Aadhaar number holder, the client application immediately
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             949
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

packages and encrypts the input parameters into the PID block before           A
transmission and sends it to the server of the requesting entity using
secure protocols. After validation, the server of a requesting entity passes
the authentication request to the CIDR, through the server of the
Authentication Service Agency. The Regulation further provides that
the authentication request must be digitally signed by the requesting entity
                                                                               B
and/or by the Authentication Service Agency, pursuant to the mutual
agreement between them. Based on the mode of authentication
requested, the CIDR validates the input parameters against the data
stored and returns 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       C
to the authentication transaction. In all modes of authentication, the
Aadhaar number is mandatory and is submitted along with the input
parameters such that authentication is always reduced to a 1:1 match.
Clause (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
                                                                               D
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;
                                                                               E
(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.         F
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
                                                                               G
regulations governing the entity, whichever is later. Upon the expiry of
this period, the logs shall be deleted except those records which are
required to be retained by a court or for any pending disputes. Regulation
20(1) provides that an Authentication Service Agency would maintain
logs of the authentication transactions processed by it, containing the
following transaction details:                                                 H
950               SUPREME COURT REPORTS                                 [2018] 8 S.C.R.


A     (a) identity of the requesting entity;
      (b) parameters of authentication request submitted; and
      (c) parameters received as authentication response.
      The Regulation excludes retention of Aadhaar number, PID information,
B     device identity related data and e-KYC response data. Under Regulations
      20(2) and 20(3), authentication logs shall be maintained by the ASA for
      a period of two years, during which period the Authority and/or the
      requesting entity may require access to such records for grievance
      redressal, dispute redressal and audit in accordance with the procedure
      specified in the regulations. The authentication logs shall not be used for
C     any purpose other than that stated. Upon the expiry of the period of two
      years, the authentication logs shall be archived for a period of five years.
      Upon the expiry of five years or the number of years required by the
      laws or regulations governing the entity whichever is later, the
      authentication logs shall be deleted except those logs which are required
D     to be retained by a court or for pending disputes. Section 2(d)428 of the
      Aadhaar Act allows storage of the record of the time of authentication.
      These provisions permit the storage of logs of authentication transactions
      for a specific time period.
      The power-point presentation made by the CEO of UIDAI states that:
E               “With registered devices every biometric device will have a
                unique identifier allowing traceability, analytics and fraud
                management and biometric data will be signed within the device.”
      The response further indicates that UIDAI gets the AUA code, ASA
      code, unique device code, registered device code used for authentication,
F     and that UIDAI would know from which device the authentication has
      happened and through which AUA/ASA. The response provided by the
      respondents states:
                “UIDAI does not get any information related to the IP address
                or the GPS location from where authentication is performed as
G               these 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.
      428
            Section 2(d) states: “authentication record” means the record of the time of
            authentication and identity of the requesting entity and the response provided by
H           the Authority
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                  951
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

          This is what the slides meant by traceability. UIDAI does not                A
          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
                                                                                       B
          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:
                                                                                       C
(a) authentication request data received including PID block;
(b) authentication response data sent;
(c) meta data429 related to the transaction; and
(d) any authentication server side configurations430 as necessary.                     D
The only data, which has been excluded from retention under this provision,
like Section 32(3) of the Aadhaar Act, is the purpose of authentication.
Regulation 27 provides that the authentication transaction data shall be
retained by UIDAI for a period of six months, and will thereafter be
archived for five years, upon which, the authentication transaction data
                                                                                       E
shall be deleted except when it is required to be maintained by a court or
in connection with any pending dispute. These provisions indicate that
under the Aadhaar architecture, UIDAI stores authentication transaction
data. This is in violation of the widely recognized data minimisation
principles which seek that data collectors and processors delete personal
data records when the purpose for which it has been collected is fulfilled.            F
The lack of specification of security standards and the overall lack of
transparency and inadequate grievance redressal mechanism under the
Aadhaar program greatly exacerbate the overall risk associated with
data retention. In the Aadhaar regime, an Authentication User Agency
(AUA) connects to the CIDR and uses Aadhaar authentication to validate
                                                                                       G
a user and enable its services. The responsibility for the logistics of
service delivery rests with the AUAs. In this federated model,
429
      AUA code, ASA code, unique device code, registered device code used for
      authentication, and that UIDAI would know from which device the authentication
      has happened
430
      An important configuration could be IP address                                   H
952             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     Authentication Service Agencies (ASAs) transmit authentication requests
      to CIDR on behalf of one or more AUAs. However, any device that
      communicates via the Internet is assigned an IP address. Using the meta-
      datarelated to the transaction, the location of the authentication can easily
      be traced using the IP address.
B            228. The petitioners have also brought the attention of this Court
      to bear on an expert report, with respect to security and Aadhaar, which
      was filed along with an Additional Affidavit dated 09 March 2018. The
      report dated 4 March 2018 is titled as “Analysis of Major Concern
      about Aadhaar Privacy and Security” and has been authored by
      Professor Manindra Agrawal. Professor Agrawal is the N Ramarao
C     Professor at IIT Kanpur and is a member of the Technology and
      Architecture Review Board (TARB) and of the Security Review
      Committee of UIDAI. Professor Agarwal’s Report deals with the notion
      of differential privacy. Differential privacy makes it possible for tech
      entities to collect and share aggregate information about user habits,
D     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:
E
        (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
F            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,
G            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:

H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               953
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

        “Finally, let us turn attention to Verification Log. Its leakage may     A
        affect both the security and the privacy of an individual as one
        can extract identities of several people (and hence can keep
        changing forged identities) and also locate the places of
        transactions done by an individual in the past five years. Note
        that differential privacy of this becomes negative since without
                                                                                 B
        access to this database it is not possible to track locations of an
        individual in past five years (as opposed to tracking current location
        which is possible). Therefore, Verification Log must be kept
        secure.”
The Report underlines the importance of ensuring the security of
verification logs in the Aadhaar database. The leakage of verification           C
logs is capable of damaging the security and privacy of individuals since
the report notes that from the verification log, it is possible to locate the
places of transactions by an individual in the past five years. A breach in
verification log would allow a third party to access the location of the
transactions of an individual over the past five years. The report indicates     D
that it is possible through the Aadhaar database to track the location of
an individual. The Aadhaar database is different from other databases
such as PAN Card or driving license. The Aadhaar database is universal
and contains the biometrics of an individual. The threshold to scrutinize
the effects of this database is therefore much higher as compared to
that of other databases.                                                         E

      229. In Puttaswamy, Justice Kaul (in his concurring judgment)
emphasized upon the concerns regarding surveillance of individuals. The
learned Judge held:
        “The growth and development of technology has created new                F
        instruments for the possible invasion of privacy by the State,
        including through surveillance, profiling and data collection and
        processing. Surveillance is not new, but technology has permitted
        surveillance in ways that are unimaginable… One such technique
        being adopted by States is ‘profiling’. The European Union
        Regulation of 2016 on data privacy defines ‘Profiling’ as any            G
        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
                                                                                 H
954              SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A              situation, health, personal preferences, interests, reliability,
               behaviour, location or movements. Such profiling can result in
               discrimination based on religion, ethnicity and caste.” 431
      Justice Kaul also dealt with the need to regulate the conduct of private
      entities vis-a-vis profiling of individuals:
B              “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…432
               …[I]n this digital age, individuals are constantly generating
               valuable data which can be used by non-State actors to track
C              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
D              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.” 433

E            230. Section 2(c) of the Aadhaar Act is capable of revealing the
      identity of an individual to UIDAI. Section 2(d) permits storage of record
      of the time of authentication. Through meta data and in the light of the
      observations made in the Professor Manindra Agarwal Report, it can
      easily be concluded that it is possible through the UIDAI database to
      track the location of an individual. Further, the verification logs reveal
F     the details of transactions over the past five years. The verification logs
      are capable of profiling an individual. Details of the transaction include
      what the transaction was (whether authentication request was accepted/
      rejected), where it was sent from, and how it was sent. The only thing
      not stored in the transaction is its purpose.
G            231. The threat to privacy arises not from the positive identification
      that biometrics provide, but the ability of third parties to access this in an
      identifiable form and link it to other information, resulting in secondary
      431
            Puttaswamy at para 585
      432
            Puttaswamy at para 587
      433
H           Puttaswamy at para 588
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                    955
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

use of that information without the consent of the data subject. This                    A
erodes the personal control of an individual over the uses of his or her
information. The unauthorised secondary use of biometric data is perhaps
the greatest risk that biometric technology poses to informational
privacy. 434 The Manindra Agarwal Report acknowledges that the
biometric database in the CIDR is accessible by third-party vendors
                                                                                         B
providing biometric search and de-duplication algorithms. The other three
databases are stored, in encrypted form, by UIDAI.
In this regard, it would be necessary to deal with the Contract (dated 24
August 2010) signed between UIDAI and L1 Identity Solutions (the
foreign entity which provided the source code for biometric storage). It
has been submitted by the petitioners that the contract gives L1 Identity                C
Solutions free access to all personal information about all residents in
India. The contract specifies that UIDAI (‘the purchaser’) has the right
in perpetuity to use all original newly created processes “identified” by
M/S L-1 Identity Solutions “solely during execution” of the contract to
the purchaser’s unique specifications and which do not contain any pre-                  D
existing intellectual property right belonging to L-1 Identity Solutions.435
UIDAI was provided 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                E
          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.”436
The Contract authorises L-1 Identity Solutions to retain proprietary
ownership of all intellectual property rights in and to goods, services and
                                                                                         F
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                    G
modification or derivative to any other customer or third party other than

434
      Nancy Yue Liu, Bio-Privacy: Privacy Regulations and the Challenge of Biometrics,
      Routledge (2013) at page 76
435
      Clause 13.1 of the Contract
436
      Ibid                                                                               H
956                 SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A     the purchaser without the purchaser’s prior written permission.437 Clause
      13.3 provides:
                   “M/S L-1 Identity Solutions Operating Company/ The team of
                   M/S L-1 Identity Solutions Operating Company shall ensure that
                   while it uses any software, hardware, processes, document or
B                  material in the course of performing the Services, it does not
                   infringe the Intellectual Property Rights of any person and M/S
                   L-1 Identity Solutions Operating Company shall keep the
                   Purchaser indemnified against all costs, expenses and liabilities
                   howsoever, arising out any illegal or unauthorized use (piracy) or
                   in connections with any claim or proceedings relating to any
C                  breach or violation of any permission/license terms or
                   infringement of any Intellectual Property Rights by M/S L-1
                   Identity Solutions Operating Company or the team of M/S L-1
                   Identity Solutions Operating Company during the course of
                   performance of the Services. In case of infringement by M/S L-
D                  1 Identity Solutions Operating Company/ The team of M/S L-1
                   Identity Solutions Operating Company, M/S L-1 Identity Solutions
                   Operating Company shall have sole control of the defense and
                   all related settlement negotiations.”
      Clause 13.4 deals with information privacy. It provides:
E                  “M/S L-1 Identity Solutions Operating Company/ The team of
                   M/S L-1 Identity Solutions Operating Company shall not carry
                   any written/printed document, layout diagrams, floppy diskettes,
                   hard disk, storage tapes, other storage devices or any other goods/
                   material proprietary to Purchaser into/out of Datacenter Sites
F                  and UIDAI Locations without written permission from the
                   Purchaser.”
      Clause 15, titled as “data and hardware”, provides:
                   “15.1 By virtue of this Contract, M/s L-1 Identity Solutions
                   Operating Company/The team of M/s L-1 Identity Solutions
G                  Operating Company may have access to personal information
                   of the Purchaser [UIDAI] and/or a third party or any resident of
                   India, any other person covered within the ambit of any legislation
                   as may be applicable. The purchaser shall have the sole
                   ownership of and the right to use all such data in perpetuity
      437
H           Ibid
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             957
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

        including any data or other information pertaining to the residents    A
        of India that may be in the possession of M/s L-1 Identity Solutions
        Operating Company or the Tram of M/s L-1 Identity Solutions
        Operating Company in the course of performing.
        15.2 The purchaser shall have the sole ownership of and the
        right to use, proprietary Biometric templates of residents of India    B
        as created and maintained by M/S L-1 Identity Solutions
        Operating Company in the course of performing the Services
        under 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       C
        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.”                                            D

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         E
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:                                      F
        “307…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         G
        data recipient of information pertaining to data transfer and use.”
Prior to the enactment of the Aadhaar Act, an individual had no right of
informed consent. Without the consent of individual citizens, UIDAI
contracted with L-1 Identity Solutions to provide any information to it
for the performance of the Contract. It has been provided in the Contract      H
958               SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A     that L-1 Identity Solutions would indemnify UIDAI against any loss
      caused to it. However, the leakage of sensitive personal information of
      1.2 billion citizens, cannot be remedied by a mere contractual indemnity.
      The loss of data is irretrievable. In a digital society, an individual has the
      right to protect herself by maintaining control over personal information.
      The protection of data of 1.2 billion citizens is a question of national
B
      security and cannot be indemnified by a Contract.
             233. Mr Shyam Divan, learned senior counsel for the petitioners,
      has also drawn the attention of this Court to the Memorandum of
      Understanding (MoU) signed between UIDAI and various entities for
      carrying out the process of enrolment. Before the enactment of the
C     Aadhaar Act, UIDAI existed as an executive authority, under the
      erstwhile Planning Commission and then under the Union Ministry of
      Communications and Information Technology. Mr. Divan has argued
      that the activities of the private parties engaged in the process of enrolment
      had no statutory or legal backing. It was his contention that MOUs signed
D     between UIDAI and Registrars are not contracts within the purview of
      Article 299 of the Constitution, and therefore, do not cover the acts done
      by the private entities engaged by the Registrars for enrolment. In
      Monnet Ispat and Energy Ltd v Union of India438, this Court had
      held:
E               “290. What the appellants are seeking is in a way some kind of
                a specific performance when there is no concluded contract
                between the parties. An MOU is not a contract, and not in
                any case within the meaning of Article 299 of the
                Constitution of India.”439

F     The MoUs entered into by UIDAI do not fall within the meaning of
      Article 299 of the Constitution. There is no privity of contract between
      UIDAI 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
G     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
      438
            (2012) 11 SCC 1
      439
            Ibid, at page 153
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                         959
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

requesting entities. Currently, there are 212 Registrars and 755 enrolling                    A
agencies in different states of the country.440 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
                                                                                              B
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 of any individual with the biometric service providers (BSPs)
for the performance of contracts with them.
       235. The proviso to Section 28(5) provides only for a request to                       C
UIDAI for access to information and does not make access to information
a right of the individual. This would mean that it would be entirely upon
the discretion of the UIDAI to refuse to grant access to the information
once a request has been made. It is also not clear how a person is
supposed to know that the biometric information contained in the database                     D
has changed if he/she does not have access to it. UIDAI is also
empowered to investigate any breach under the Act, as a result of which
any offence under the Act will be cognizable only if a complaint is filed
by UIDAI. UIDAI is not an independent monitoring agency.
Under the Aadhaar architecture, UIDAI is the only authority which                             E
carries out all the functions, be it administrative, adjudicatory, investigative,
or monitoring of the project. While the Act confers such major functions
on UIDAI, it does not place any institutional accountability upon UIDAI
to protect the database of citizens’ personal information. The Act is
silent on the liability of UIDAI and its personnel in case of non-compliance
of the provisions of the Act or the regulations made under it. Under                          F
Section 23(2)(s) of the Act, UIDAI is required to establish a grievance
redressal mechanism. Making the authority administering a project, also
responsible for providing for the framework to address grievances arising
from the project, severely compromises the independence of the
grievance redressal body.441 Section 47 of the Act violates the right to                      G
seek remedy. Under Section 47(1), a court can take cognizance of an
440
      As submitted by Mr Rakesh Dwivedi, learned senior counsel for the State of
      Gujarat
441
      The Centre for Internet & Society, Salient Points in the Aadhaar Bill and Concerns,
      available at https://cis-india.org/internet-governance/salient-points-in-the-aadhaar-
      bill-and-concerns.                                                                      H
960               SUPREME COURT REPORTS                                 [2018] 8 S.C.R.


A     offence punishable under the Act only on a complaint made by UIDAI
      or any officer or person authorised by it. There is no grievance redressal
      mechanism if any breach or offence is committed by UIDAI itself. The
      law must specify who is to be held accountable. The Act lacks a
      mechanism through which any individual can seek speedy redressal for
      his/her data leakage and identity theft. Compensation must be provided
B
      for any loss of data of an individual. A stringent and independent 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
C     individual retains the right to seek compensation and justice. This would
      require a carefully designed structure.442
             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
D     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
E     regulatory framework to protect the basic rights of individuals. The
      architecture of Aadhaar ought to have, but has failed to embody within
      the law the establishment of an independent monitoring authority (with a
      hierarchy of regulators), along with the broad principles for data
      protection.443 The principles should include that the means of collection
F     of data are fair and lawful, the purpose and relevance is clearly defined,
      user limitations accompanied by intelligible consent requirements are
      specified and subject to safeguards against risks such as loss, unauthorised
      access, modification and disclosure.444 The independent authority needs
      to be answerable to Parliament. In the absence of a regulatory framework
      which provides robust safeguards for data protection, the Aadhaar Act
G
      442
            Shankkar Aiyar, Aadhaar: A Biometric History of India’s 12-Digit Revolution,
            Westland (2017), at pages 226-227
      443
            Subhashis Banerjee, Architecture for privacy, The Indian Express (5 May 2018),
            available at https://indianexpress.com/article/opinion/columns/architecture-for-
            privacy-data-protection-facebook-india-united-states-5163819/
      444
            Shankkar Aiyar, Aadhaar: A Biometric History of India’s 12-Digit Revolution,
H           Westland (2017), at page 226
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              961
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

does not pass muster against a challenge on the ground of Article 14.           A
The law fails to meet the norms expected of a data protection regime
which safeguards the data of 1.2 billion Indians. The absence of a
regulatory framework leaves the law vulnerable to challenge on the
ground that it has failed to meet the requirements of fair institutional
governance under the rule of law.
                                                                                B
       237. The scheme of the Aadhaar Act is postulated on the norms
enunciated in Chapter VI for the protection of information and their
enforcement under a regime of criminal offences and penalties under
Chapter VII. Providing a regime under law for penalizing criminal
wrongdoing is necessary. But, criminal offences are not a panacea for a
robust regulatory framework under the auspices of an autonomous                 C
regulatory body. Violations in regard to the integrity of data may be
incremental. Millions of data transactions take place in the daily lives of
a community of individuals. Violations in regard to the integrity of data
are numerous. Some of them may appear to be trivial, if looked at in
isolation. However, cumulatively, these violations seriously encroach on        D
the dignity and autonomy of the individual. A regime of criminal law may
not in itself be adequate to deal with all these violations in terms of their
volume and complexity. 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.              E
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             F
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    G
to protect the individual right to informational self-determination.
      238. Section 33(2), which permits disclosure of identity information
and authentication records in the interest of national security, specifies a
procedure for oversight by a committee. However, no substantive
                                                                                H
962             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     provisions have been laid down as guiding principles for the oversight
      mechanism such as the principle of data minimisation.
             239. Privacy concerns relating to the Aadhaar project have been
      the subject of wide ranging deliberation. Biometric data offers strong
      evidence of one’s identity since it represents relatively unique biological
B     characteristics which distinguish one person from another. As biometric
      data can be usually linked to only one individual it acts as a powerful,
      unique identifier that brings together disparate pieces of personal
      information about an individual. As a relatively unique identifier, biometric
      data not only allows individuals to be tracked, but it also creates the
      potential for the collection of an individual’s information and its
C     incorporation into a comprehensive profile. Central databases, data
      matching/linking and profiling are technical factors that facilitate ‘function
      creep’ (the slippery slope according to which information can be used
      for functions other than that for which it was collected). Privacy advocates
      believe that any identification scheme can be carried out with a hidden
D     agenda and that the slippery slope effect can be relevant to several
      factors such as motivations of governments and business, and on the
      existence of safeguards. The special nature of biometric data makes
      function creep more likely and even attractive. The legal measures
      possible to control function creep are still limited. However, there are
      several ways in which function creep can be curtailed. They include (i)
E     limiting the amount of data that is collected for any stated purpose; (ii)
      enabling regulation to limit technological access to the system; (iii)
      concerted debates with all stakeholders and public participation; (iv)
      dispersion of multiple enablers for a system; and (v) enabling choices
      for user participation.
F            240. This Court held in Puttaswamy that a reasonable expectation
      of privacy requires that data collection must not violate the autonomy of
      an individual. The Court has held consent, transparency, and control
      over information as the cornerstones over which the fundamentals of
      informational privacy stand. The Court had made it clear that an individual
G     has the right to prevent others from 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.
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                     963
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

       241. Section 57 of the Aadhaar Act allows the use of an Aadhaar                    A
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
                                                                                          B
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                     C
the legal framework for a proposed legislation on privacy was prepared
by the group and was uploaded on the website of the Government of
India. The paper noted the repercussions of having a project based on a
database of unique individual IDs:
          “Data privacy and the need to protect personal information is                   D
          almost never a concern when data is stored in a decentralized
          manner. However, all this is likely to change with the
          implementation of the UID Project. One of the inevitable
          consequences of the UID Project will be that the UID Number
          will unify multiple databases. As more and more agencies of the                 E
          government sign on to the UID Project, the UID Number will
          become the common thread that links all those databases together.
          Over time, private enterprise could also adopt the UID Number
          as an identifier for the purposes of the delivery of their services
          or even for enrolment as a customer...Once this happens, the
          separation of data that currently exists between multiple databases             F
          will vanish…
          Such a vast interlinked public information database is
          unprecedented in India. It is imperative that appropriate steps be
          taken to protect personal data before the vast government
          storehouses of private data are linked up and the threat of data                G
          security breach becomes real.”445
The Paper highlighted the potential of exploitation that the UID project
possessed. The potential was that the UID data could be used directly
445
      Government of India,Approach Paper for a Legislation on Privacy (2010), available
      at http://www.prsindia.org/uploads/media/UID/aproach_paper.pdf                      H
964                 SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     or indirectly by market forces for commercial exploitation as well as for
      intrusions by the State into citizens’ privacy. The Paper contained an
      incisive observation in regard to the exploitation of citizens’ data by private
      entities:
                   “Similarly, the private sector entities such as banks, telecom
B                  companies, hospitals etc are collecting vast amount of private or
                   personal information about individuals. There is tremendous scope
                   for both commercial exploitation of this information without the
                   consent/ knowledge of the individual consent and also for
                   embarrassing an individual whose personal particulars can be
                   made public by any of these private entities. The IT Act does
C                  provide some safeguards against disclosure of data / information
                   stored electronically, but there is no legislation for protecting the
                   privacy of individuals for all information that may be available
                   with private entities
                   In view of the above, privacy of individual is to be protected both
D                  with reference to the actions of Government as well as private
                   sector entities.”446
      The Paper highlighted the need for a stringent privacy protection
      mechanism, which could prevent individual data from commercial
      exploitation as well as individual profiling.
E
             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
F     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
G     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 clear case of overbreadth and an instance of manifest
      arbitrariness.
      446
            Ibid
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                          965
                  [DR.[ASHOK   BHUSHAN, J.] J.]
                        D. Y. CHANDRACHUD,

        243. Section 57 indicates that the legislature has travelled far                       A
beyond its stated object of ensuring targeted delivery of social welfare
benefits. Allowing the Aadhaar platform for use by private entities
overreaches the purpose of enacting the law. It leaves bare the
commercial exploitation of citizens data even in purported exercise of
contractual clauses. This will result in a violation of privacy and profiling
                                                                                               B
of citizens.
An article titled “Privacy and Security of Aadhaar: A Computer
Science Perspective”447 underlines the risk of profiling and identification
that is possible by the use of Aadhaar numbers. It states:
          “The Aadhaar number is at the heart of the Aadhaar scheme                            C
          and is one of the biggest causes of concern. Recall that the
          Aadhaar number is a single unique identifier that must function
          across multiple domains. Given that the Aadhaar number must
          necessarily be disclosed for obtaining services, it becomes publicly
          available, not only electronically but also often in human readable
          forms as well, thereby increasing the risk that service providers                    D
          and other interested parties may be able to profile users across
          multiple service domains. Once the Aadhaar number of an
          individual is (inevitably) known, that individual may be identified
          without consent across domains, leading to multiple breaches in
          privacy.”                                                                            E
        244. The risks which the use of Aadhaar “for any purpose” carries
is that when it is linked with different databases (managed by the State
or by private entities), the Aadhaar number becomes the central unifying
feature that connects the cell phone with geo-location data, one’s
presence and movement with a bank account and income tax returns,                              F
food and lifestyle consumption with medical records. This starts a “causal
link” between information which was usually unconnected and was
considered trivial.448 Thus, linking Aadhaar 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
                                                                                               G
447
      Shweta Agrawal, Subhashis Banerjee, and Subodh Sharma, Privacy and Security of
      Aadhaar: A Computer Science Perspective, Economic & Political Weekly(16
      September 2017), Vol. 52, available at https://www.epw.in/journal/2017/37/special-
      articles/privacy-and-security-aadhaar.html
448
      Nishant Shah, Digital Native: Cause an effect, The Indian Express (17 June 2018),
      available at https://indianexpress.com/article/technology/social/digital-native-cause-
      an-effect-5219977/                                                                       H
966                SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     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
      Solzhenitsynin‘Cancer Ward’449. His views are prescient to our age:
B
                 “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
C                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 bands, buses,
                 trams and even people would all lose the ability to move, and the
                 wind would be unable to carry torn newspapers or autumn leaves
D                along the streets of the city. They are not visible, they are not
                 material, but every man is constantly aware of their existence…
                 Each man, permanently aware of his own invisible threads,
                 naturally develops a respect for the people who manipulate the
                 threads…”
E     The invisible threads of a society networked on biometric data have
      grave portents for the future. Unless the law mandates an effective
      data protection framework, the quest for liberty and dignity would be as
      ephemeral as the wind.
             245. A novelist’s vision is threatening to become a reality in our
F     times. Profiling can impact individuals and their behaviour. Since data
      collection records the preferences of an individual based on the entities
      which requested for proof of identity, any such pattern in itself is crucial
      data that could be used to predict the emergence of future choices and
      preferences of individuals. These preferences could also be used to
      influence the decision making of the electorate in choosing candidates
G     for electoral offices. Such a practice would be unhealthy for the working
      of a democracy, where a citizen is deprived of free choice. In the modern
      digital era, privacy protection does not demand that data should not be
      collected, stored, or used, but that there should be provable guarantees
      449
            Aleksandr Solzhenitsyn, Cancer Ward, The Bodley Head (1968)
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               967
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

that the data cannot be used for any purpose other than those that have          A
been approved. In any of the programmes employed, it is imperative
that the state takes strong data privacy measures to prevent theft and
abuse. Moreover, it must be realized that an identification system like
Aadhaar, which is implemented nationwide, will always be more prone
to external threats. The State is always open to threat from its adversaries,
                                                                                 B
and a national level identification system can become an easy target for
anyone looking to cause serious damage as individuals’ biometric
credentials are at risk in the process. Therefore, it is vital that state
action ascertain security vulnerabilities while developing an identification
system. These issues have not been dealt with by the Aadhaar Act.
There is currently limited legislative or other regulatory guidance to specify   C
whether private or public organisations are prevented from sharing or
selling biometric information 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.
                                                                                 D
       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         E
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            F
Consolidated Fund of India and expand the scope of Aadhaar. Any
activity of the government paid for from the Consolidated Fund of India
ranging from supply of subsidised grains and LPG, to use of roads and
civic amenities, healthcare, and even rebates to tax payers could come
under such an umbrella. The scope of Section 7 could cover every basic
aspect of the lives of citizens. The marginalized sections of society, who       G
largely depend upon government’s social security schemes and other
welfare programmes for survival could be denied basic living conditions
because of a mismatch in biometric algorithms. The notifications issued
by government under Section 7 of the Act, which require mandatory
proof of possession of an Aadhaar number or requiring authentication,            H
968             SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     cover 252 schemes, including schemes for children (such as benefits
      under the Sarva Shiksha Abhiyan or getting meals under the Mid-day
      meal scheme, painting and essay competitions for children, scholarships
      on merit), schemes relating to rehabilitation of bonded labour and human
      trafficking, scholarship schemes for SC/ST students, universal access
      to tuberculosis care, pensions, schemes relating to labour and employment,
B
      skill development, personnel and training, agriculture and farmers’ welfare,
      primary and higher education, social justice, benefits for persons with
      disabilities, women and child development, rural development, food
      distribution, healthcare, panchayati raj, chemicals & fertilizers, water
      resources, petroleum and natural gas, science and technology, sanitation,
C     textiles, urban development, minority affairs, road transport, culture,
      tourism, urban housing, tribal affairs and stipends for internship for
      students. The list is ever expanding and is endless. These notifications
      cover a large number of facilities provided by the government to its
      citizens. Every conceivable facility can be brought under the rubric of
      Section 7. From delivery to deliverance, almost every aspect of the cycle
D
      of life would be governed by the logic of Aadhaar.
              247. When Aadhaar is seeded into every database, it becomes a
      bridge across discreet data silos, which allows anyone with access to
      this information to re-construct a profile of an individual’s life. It must be
      noted while Section 2(k) of the Aadhaar Act excludes storage of individual
E     information related to race, religion, caste, tribe, ethnicity, language, income
      or medical history into CIDR, the mandatory linking of Aadhaar with
      various schemes allows the same result in effect. For instance, 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
F     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
G     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
H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               969
               [DR.[ASHOK   BHUSHAN, J.] J.]
                     D. Y. CHANDRACHUD,

every benefit or service which the government provides, it is impossible         A
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 the government provides to
its citizens. Therefore, benefits and services cannot be measured with
                                                                                 B
the same yardstick as subsidies. The inclusion of services and benefits
in Section 7 is a pre-cursor to the kind of function creep which is
inconsistent with privacy and informational self-determination. The broad
definitions of the expressions ‘services and ‘benefits’ would enable
government to regulate almost every facet of its engagement with citizens
under the Aadhaar platform. Section 7 suffers from clear overbreadth in          C
its uncanalised application to services and benefits.
       248. The open-ended nature of the provisions of Section 7 is
apparent from the definition of ‘benefit’ in Section 2(f) and of ‘service’
in Section 2(w). ‘Benefit’ is defined to mean any advantage, gift, reward,
relief or payment in cash or kind provided to an individual or a group of        D
individuals. ‘Service’ is defined to mean any provision, facility, utility, or
any other assistance provided in any form to an individual or a group of
individuals. These are broad and unstructured terms under which the
government can cover the entire gamut of its activities involving an
interface with the citizen. The provision has made no requirement to
determine whether in the first place biometric identification is necessary       E
in each case and whether a less intrusive modality should suffice. Both
the definitions include such other services as may be notified by the
Central government. The residuary clause is vague and ambiguous and
leaves it to the Central government at its uncharted discretion to expand
on what benefits and services would be covered by the legislation. The           F
manner in which these definitions have been expansively applied to cover
a wide range of activities is attributable to the vagueness implicit in
Section 7.
Can the provisions of Section 7 be applied with any justification to pensions
payable on account of the past service rendered by a person to the               G
state? Pension, it is well settled, is not a largesse or bounty conferred by
the state. Pension, as a condition of service, attaches as a recompense
for the long years of service rendered by an individual to the state and its
instrumentalities. Pensioners grow older with passing age. Many of
them suffer from the tribulations of old age including the loss of biometrics.
                                                                                 H
970               SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     It is unfair and arbitrary 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
B
      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.
C     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
D     authentication? The object of the state is to ensure that the benefits
      which it offers are being availed of by genuine students who are entitled
      to them. This legitimate aim can be fulfilled by adopting less intrusive
      measures as opposed to the mandatory enforcement of the Aadhaar
      scheme as the sole repository of identification. The state has failed to
      demonstrate that a less intrusive measure other than biometric
E     authentication will not subserve its purposes. That the state has been
      able to insist on adherence to the Aadhaar scheme without exception is
      a result of the overbreadth of Section 7. Consequently, the inclusion of
      benefits and services in Section 7 suffers from a patent ambiguity,
      vagueness and overbreadth which renders the inclusion of services and
F     benefits arbitrary and violative of Article 14.
              249. Various entities are involved in the Aadhaar project. Their
      inter-dependencies require a greater onus to be put on them so as to
      match privacy and security requirements. The architecture of Aadhaar
      treats individuals as data. However, the core must be about personhood.
G     The architecture of Aadhaar is destroyed by a lack of transparency,
      accountability and limitations. Safeguards for protection of individual rights
      ought to have been explicitly guaranteed by design and default.450 The
      presence of accountability and transparency within the Aadhaar
      architecture ought to be a necessary requirement so as to overcome the
      450
            Shankkar Aiyar, Aadhaar: A Biometric History of India’s 12-Digit Revolution,
H           Westland (2017), at page 226
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             971
                  [DR.[ASHOK   BHUSHAN, J.] J.]
                        D. Y. CHANDRACHUD,

fear of the loss of privacy and liberty. Without these safeguards, the            A
legislation and its architecture cannot pass muster under proportionality.
It is also important to highlight that identity is a vital facet of personality
and hence of the right to life under Article 21 of the Constitution. Identity
is essential and inalienable to human relationships and in the dealings of
an individual with the State. The notion that individuals possess only one,       B
or at the least, a dominant identity is not sound constitutional principle.
The Constitution has been adopted for a nation of plural cultures. It is
accepting of diversity in every walk of life. Diversity of identity is an
expression of the plurality which constitutes the essence of our social
culture. Amartya Sen in ‘The Argumentative Indian’451 demonstrates
the untenability of the notion that identity is exclusive. He rejects the         C
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        D
          anthropologist, a university professor, a Christian, a bird watcher,
          and an avid believer in extra-terrestrial 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      E
          relevance, depending on the context.”452
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            F
freedom may generate a distinct identity. Combinations of freedoms are
compatible with composite identities. Sen also rejects the notion that
individuals “discover their identities with little room for choice”. The
support for such a notion, as he observes, comes from communitarian
philosophy, according to which identity precedes choice:
                                                                                  G
          “As Professor Michael Sandel has explained this claim (among
          other communitarian claims) : ‘community describes not just what
          they have as fellow citizens but also what they are, not a

451
      Amartya Sen, The Argumentative Indian, Penguin (2005), at page 350
452
      Ibid, at page 350                                                           H
972               SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A               relationship they choose (as in a voluntary association) but an
                attachment they discover, not merely an attribute but a constituent
                of their identity In this view, identity comes before reasoning
                and choice.”453
      Sen rejects the above idea on the ground that it does not reflect a
B     universally valid principle. Undoubtedly, some identities are ‘given’. But
      even here, as Sen explains, the issue is not whether an identity can be
      selected by an individual in all cases but whether the individual has a
      choice over the relative weight to be ascribed to different identities:
                “The point at issue is not whether any identity whatever can be
C               chosen (that would be an absurd claim), but whether we have
                choices over alternative identities or combinations of identities,
                and perhaps more importantly, whether we have some freedom
                in deciding what priority to give to the various identities that we
                may simultaneously have. People’s choices may be constrained
                by the recognition that they are, say, Jewish or Muslim, but there
D               is still a decision to be made by them regarding what importance
                they give to that particular identity over others that they may
                also have (related, for example, to their political beliefs, sense of
                nationality, humanitarian commitments or professional
                attachments).”454
E     Sen reasons that identity is a plural concept and the relevance of different
      identities depends on the contexts in which they are asserted:
                “Identity is thus a quintessentially plural concept, with varying
                relevance of different identities in distinct contexts. And, most
                importantly, we have choice over what significance to attach to
F               our different identities. There is no escape from reasoning just
                because the notion of identity has been invoked. Choices over
                identities do involve constraints and connections, but the choices
                that exist and have to be made are real, not illusory. In particular,
                the choice of priorities between different identities, including what
G               relative weights to attach to their respective demands, cannot be
                only a matter of discovery. They are inescapably decisional,
                and demand reason-not just recognition.”455

      453
            Ibid, at page 350
      454
            Ibid, at page 351
      455
H           Ibid, at page 352
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                           973
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

       250. The Constitution recognizes, through the rights which it            A
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
                                                                                B
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       C
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 be human is to have a multitude of
identities and be guaranteed the right to express it in various forms. The
state which must abide by a written Constitution cannot require any
                                                                                D
person to forsake one or more identities. Constitutional freedoms compel
the state to respect them.
       251. Technologies that affect how our identities function must be
subject to constitutional norms. The existence of individual identity is the
core of a constitutional democracy. Addressing the Constituent Assembly
on 4th November 1948, Dr B.R. Ambedkar had emphasised on the                    E
importance of individual identity in our constitutional framework:
         “I am glad that the Draft Constitution has… adopted the individual
         as its unit.”456
Having an individual identity is an important part of the human condition.      F
The negation of identity is the loss of personhood, which in turn affects
the freedom of choice and free will. Personhood constructs democracy.
It represents the quality of democracy. Our decided cases have
recognized the intimate relationship between human liberty and identity.
The traveller in Maneka Gandhi v Union of India457, the employee
complaining of sexual harassment in Vishaka v State of Rajasthan458,the         G
guardian of the minor in Githa Hariharan (Ms) v Reserve Bank of

456
      Constituent Assembly Debates (4 November, 1948)
457
      (1978) 1 SCC 248
458
      (1997) 6 SCC 241                                                          H
974              SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     India459, the bar employee in Anuj Garg v Hotel Association of
      India460,the transgender in National Legal Services Authority v Union
      of India 461 , the tribal worker in Madhu Kishwar v State of
      Bihar462andthe oppressed victim of state violence in Nandini Sundar v
      State of Chattisgarh463are all engaged in the assertion of identity.
      Puttaswamy recognizes the role of the individual as “the core of
B
      constitutional focus” and “the focal point of the Constitution”. Justice
      Kaul’s concurring opinion recognised that the individual has the right to
      control her identity.464
      It was submitted by the petitioners that a unique identity number infringes
      the identity of the individual since it reduces every resident to a number.
C     Ascribing to the holder of an Aadhaar card, a unique identity number
      must not infringe constitutional identities. The Aadhaar Act indicates, in
      its Statement of Objects and Reasons, that correct identification of
      targeted beneficiaries is necessary and that a failure to establish the
      identity of an individual is a major hindrance in the disbursal of welfare
D     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
E     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,
F     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 entitlement,
G     income or medical history. Thus, the impact of technology is such that
      459
            (1999) 2 SCC 228
      460
            (2008) 3 SCC 1
      461
            (2014) 5 SCC 438
      462
            (1996) 5 SCC 125
      463
            (2011) 7 SCC 547
H     464
            Ibid
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               975
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

the scheme of Aadhaar can reduce different constitutional identities into        A
a single identity of a 12-digit number and infringe the right of an individual
to identify herself/himself with choice.
       253. Social security schemes and programmes are a medium of
existence of a large segment of society. Social security schemes in India,
such as the PDS, were introduced to protect the dignity of the                   B
marginalized. Exclusion from these schemes defeats the rationale for
the schemes which is to overcome chronic hunger and malnutrition.
Exclusion is violative of human dignity. As discussed previously in detail,
the statistics recorded in government records and the affidavits filed by
the petitioners point out glaring examples of exclusion due to technical
errors in Aadhaar. The authentication failures in the Aadhaar scheme             C
have caused severe disruptions particularly in rural India. Exclusion as a
consequence of biometric devices has a disproportionate impact on the
lives of the marginalized and poor. This Court cannot turn a blind eye to
the rights of the marginalized. It may be the fashion of the day to advance
the cause of a digital nation. Technology is undoubtedly an enabler. It          D
has become a universal unifier of our age. Yet, the interface between
technology and basic human rights cannot be oblivious to social reality.
Compulsive linking of biometrics to constitutional entitlements should
not result in denial to the impoverished. There exists a digital divide. To
railroad those on one side of that divide unconcerned about social and
technical constraints which operate in society is to defeat the purpose of       E
social welfare. The Court has to be specifically conscious of the dignity
of the underprivileged. The Court must fulfill its role of protecting
constitutional values even if it affects a small percentage of the population.
The exclusion errors in this case have led to grave injustice to the
marginalized. The Court, therefore, has to play an active role in protecting     F
their dignity.
       254. The institution of rights places a heavy onus on the State to
justify its restrictions. No right can be taken away on the whims and
fancies of the State. The State has failed to justify its actions and to
demonstrate why facilitating the targeted delivery of subsidies, which           G
promote several rights such as the 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     H
976                SUPREME COURT REPORTS                              [2018] 8 S.C.R.


A     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
B
      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
C              sense, then the degrees of their importance cannot be so
               different that some count not at all when others are
               mentioned.”465 (Emphasis supplied)
             255. There is no antinomy between the right to privacy and the
      legitimate goals of the State. An invasion of privacy has to be proportional
D     to and carefully tailored for achieving a legitimate aim. While the right to
      food is an important right and its promotion is a constitutional obligation
      of the State, yet the right to privacy cannot simply and automatically
      yield to it. No legitimate goal of the State can be allowed at the cost of
      infringement of a fundamental right without passing the test of
      constitutionality. While analysing the architecture of Aadhaar, this Court
E
      has demonstrated how the purported safeguards in the Aadhaar
      architecture are inadequate to protect the integrity of personal data, the
      right of informational self-determination and above all rights attributable
      to the privacy-dignity-autonomy trilogy. It is also concluded that the
      Aadhaar scheme is capable of destroying different constitutional
F     identities. The financial exclusion caused due to errors in Aadhaar based
      authentication violate the individual’s right to dignity. The Aadhaar scheme
      causes an unwarranted intrusion into fundamental freedoms guaranteed
      under the Indian Constitution since the respondents have failed to
      demonstrate that these measures satisfy the test of necessity and
      proportionality.
G
      H.5 Dignity and financial exclusion
             256. Our jurisprudence reflects a keen awareness of the need to
      achieve dignity. The nine judge Bench decision in Puttaswamy also
      emphasized the seminal value of dignity in our constitutional scheme.

H     465
            Ronald Dworkin, Taking Rights Seriously (1977), at pages 203-204
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                       977
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

Human dignity is a strengthening bond in the relationship between Parts                     A
III and IV of the Constitution. Reading the Directive Principles contained
in Part IV in the context of the right to life (in Part III of the Constitution)
has significant implications both for the substantive content of the right
and on the ability of the state in pursuit of its positive obligation to secure
conditions of a dignified existence. Dignity is an integral element of natural
                                                                                            B
law and an inalienable constitutional construct. To lead a dignified life is
a constitutional assurance to an individual. Dr Ambedkar conceptualized
four basic premises on which a political democracy can rest:
         “Political Democracy rests on four premises which may be set
         out in the following terms:
         (i) The individual is an end in himself.                                           C
         (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.                                     D
         (iv) That the State shall not delegate powers to private
               persons to govern others.”466 (Emphasis supplied)
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.                   E
       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 against467 are instances of the loss of dignity for the
marginalized. The State has social security programmes and legislation                      F
to improve the living conditions of the marginalized and to protect their
dignity and means of livelihood. However, as documented in the works
of Sainath, Dreze, Sen and other authors, India has “utterly poor standards
of the social services provided to common folk, whether it is the Mid-
day Meal Scheme, the Sarva Shiksha Abhiyan, Integrated Child                                G
466
      Dr. Babasaheb Ambedkar: Writings and Speeches (Vol. 1), Dr. Ambedkar
      Foundation (2014)
467
      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-articles/living-hunger-
      deprivation-among-aged-single-women-and-people                                        H
978              SUPREME COURT REPORTS                                   [2018] 8 S.C.R.


A     Development Services, Public Distribution system, healthcare at the
      primary health centres, district hospitals and even public hospitals in the
      state capitals”468. This manner of addressing the deprivations faced by
      the marginalized crushes their dignity.
      Any action or inaction on the part of the State which is insensitive to and
B     unconcerned about protecting the dignity of the marginalized is
      constitutionally impermissible. Denial of benefits arising out of any social
      security scheme which promotes socio-economic rights of the
      marginalized, would not be legitimate under the Constitution, for the reason
      that such denial violates human dignity. No individual can be made to
      part with his or her dignity. Responsibility for protection of dignity lies
C     not only with governments but also with individuals, groups and entities.
      It is in the above background that this Court must deal with the next
      contention of the petitioners. The submission of the petitioners is that
      identity recognition technology may be based on a system which is
      deterministic or probabilistic. Biometric authentication systems work on
D     a probabilistic model. For the purposes of authentication, a comparison
      is through a template which reduces the finger print to a scale and then,
      a minutea. The claim of the petitioners is that as a result, identities are
      reduced from certainty to a chance.
              258. Section 7 of the Aadhaar Act makes it mandatory for an
E     individual to undergo authentication or furnish proof of possession of an
      Aadhaar number in order to avail a subsidy, benefit or service, which
      incurs expenditure 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-
F     based or iris-based authentication or other biometric modalities based on
      biometric information stored in the CIDR.469
      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
G     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
      468
          Dignity, Not Mere Roti, Economic & Political Weekly (10 August, 2013), Vol. 48,
          available at https://www.epw.in/journal/2013/32/editorials/dignity-not-mere-
          roti.html
H     469
          UIDAI, Aadhaar Authentication, available at https://uidai.gov.in/authentication.html
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                     979
                 [DR.[ASHOK
                      D. Y. CHANDRACHUD,
                              BHUSHAN, J.] J.]

probabilistic in nature. It is the case of the petitioners that Aadhaar based             A
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 losing out
on welfare entitlements because of a biometric mis-match. Mr Divan
has argued in his written submissions, that “the project is not an ‘identity’
                                                                                          B
project but ‘identification’ exercise and unless the biometrics work, a
person in flesh and blood, does not exist for the state”.
In order to deal with this contention, it is necessary to understand whether
biometrics authentication can result in errors in matching. People are
identified by three basic means: “by something they know, something
they have, or something they are”.470 Biometrics fall within the last                     C
category, and, as such, should presumably be less susceptible to being
copied or forged. However, various factors can reduce the probability
of accurate human identification, and this increases the probability of a
mismatch. Human fallibility can produce errors.471
       259. In the United States of America, the National Academy of                      D
Science published a report in 2010 on biometrics titled “Biometric
Recognition: Challenges & Opportunities”472. The report was based on
a study carried out by several reputed scientists and researchers under
the aegis of the National Research Council, the National Academy of
Engineering and the Institute of Medicine. This report highlights the nature
of biometrics as follows:                                                                 E
         “Biometric recognition systems are inherently probabilistic
         and their performance needs to be assessed within the context
         of this fundamental and critical characteristic. Biometric
         recognition involves matching, within a tolerance of
         approximation, of observed biometric traits against previously                   F
         collected data for a subject. Approximate matching is required
         due to the variations in biological attributes and behaviors both
         within and between persons.”473 (Emphasis supplied)
470
      United States General Accounting Office, Technology Assessment: Using
      Biometrics for Border Security (2002), available at http://www.gao.gov/new.items/
      d03174.pdf.
                                                                                          G
471
      Jeremy Wickins, The ethics of biometrics: the risk of social exclusion from the
      widespread use of electronic identification, Science & Engineering Ethics (2007),
      at pages 45-54
472
      Biometric Recognition: Challenges & Opportunities (Joseph N. Pato and Lynette
      I. Millett eds.), National Academy of Science- United States of America (2010),
      available at https://www.nap.edu/read/12720/chapter/1                               H
473
      Ibid, at page 3
980               SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A     The report also took note of how changes in an individual’s biometrics
      may occur due to a number of factors:
                “Biometric characteristics and the information captured
                by biometric systems can be affected by changes in age,
                environment, disease, stress, occupational factors,
B               training and prompting, intentional alterations, socio-
                cultural aspects of the situation in which the presentations
                occurs, changes in human interface with the 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
C               thwart recognition for one reason or another also contribute to
                the inherent uncertainty in biometric systems.”474 (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:
D
                “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
E               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
F               by users, its performance, or the decisions on whether to use it
                in the first place—so it is best to consider these explicitly in
                system design. Clearly, the behavior of those being enrolled and
                recognized can influence the accuracy and effectiveness of
                virtually any biometric system, and user behavior can be affected
G               by the social, cultural, or legal context. Likewise, the acceptability
                of a biometric system depends on the social and cultural values
                of the participant populations.”475 (Emphasis supplied)

      474
            Ibid
      475
            Ibid, at pages 10-11
H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                 981
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

The report underlines that the relationship between an individual’s                   A
biometric traits and data records has the potential to cause
disenfranchisement, when a section of the population is excluded from
the benefits of positive claim systems. The report thus states that:
          “Policies and interfaces to handle error conditions such as failure
          to enroll or be recognized should be designed to gracefully avoid           B
          violating thedignity, privacy, or due process rights of the
          participants.” (Emphasis supplied)
       260. Els Kindt in a comprehensive research titled “Privacy and
Data Protection Issues of Biometric Applications: A Comparative
Legal Analysis”476, deals with the nature of biometrics. The book notes               C
that error rates in biometric systems lead to a situation where entitled
data subjects will be falsely rejected from the process of database
matching. This will adversely affect the rights of individuals. It has been
observed that:
          “The error rates imply also that the system will allow impostors.           D
          This is equally important because the security of biometric
          systems should be questioned in case of high false accept rates.
          This element should be given sufficient weight in the decision to
          implement a biometric system for security purposes…
          Other tests clearly indicated increased error rates for young
          persons, in case of aging, in particular for face and for disabled          E
          persons. Individuals with health problems may also be falsely
          rejected or no longer be recognized, although they were previously
          enrolled. In some cases, (non-)enrolment will be a significant
          problem. It is clear that these data subjects need additional
          protection.”477                                                             F
The book underlines the risk inherent in the limited accuracy of
biometrics.478
      261. A recently published book titled “Automating Inequality:
How High-Tech Tools Profile, Police, and Punish the Poor”479,
authored by Virginia Eubanks, deals with the impact of data mining,                   G
476
      Els J. Kindt, Privacy and Data Protection Issues of Biometric Applications: A
      Comparative Legal Analysis, Springer (2013)
477
      Ibid, at page 363
478
      Ibid
479
      Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police,
      and Punish the Poor, St. Martin’s Press (2018)                                  H
982              SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     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
B
      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
C     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
      behaviour. Statistics are used to predict which children might be future
      victims of abuse or neglect. Eubanks shows how algorithms have taken
      over for human interaction and understanding. She has argued that
D
      automated decision-making is much wider in reach and is likely to have
      repercussions unknown to non-digital mechanisms, such as nineteenth-
      century poorhouses in America. Poorhouses were tax-supported
      residential institutions to which people were required to go if they could
      not support themselves.480 People who could not support themselves
E     (and their families) were put up for bid at public auction. The person
      who got the contract (which was for a specific time-frame) got the use
      of the labour of the poor individual(s) for free in return for feeding,
      clothing, housing and providing health care for the individual and his/her
      family. The practice was a form of indentured servitude and hardly had
      any recourse for protection against abuse. Eubanks considers the
F
      technology based decision-making for poverty management as the
      extension of the poorhouses of the 19th century:
               “America’s poor and working-class people have long been subject
               to invasive surveillance, midnight raids, and punitive public policy
               that increase the stigma and hardship of poverty. During the
G              nineteenth century, they were quarantined in county poorhouses.
               During the twentieth century, they were investigated by
               caseworkers, treated like criminals on trial. Today, we have
               forged what I call a digital poorhouse from databases, algorithms,
      480
            Tommy L. Gardner, Spending Your Way to the Poorhouse, Authorhouse (2004),
H           at page 221
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                 983
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

          and risk models. It promises to eclipse the reach and repercussions         A
          of everything that came before.
          Like earlier technological innovations in poverty management,
          digital tracking and automated decision-making hide poverty from
          the professional middle-class public and give the nation the ethical
          distance it needs to make inhuman choices: who gets food and                B
          who starves, who has housing and who remains homeless, and
          which families are broken by the state. The digital poorhouse is
          a part of a long American tradition. We manage the individual
          poor in order to escape our shared responsibility for eradicating
          poverty.”481
                                                                                      C
The author further remarks:
          “While poorhouses have been physically demolished, their legacy
          remains alive 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                        D
          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                    E
          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                 F
          to care for one another.”482(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                   G
          tracking, better sharing of information, and increased visibility of
          targeted populations. In a system dedicated to supporting poor
481
      Virginia Eubanks, Automating Inequality: How High-Tech Tools Profile, Police,
      and Punish the Poor, St. Martin’s Press (2018), at pages 12-13
482
      Ibid, at page 16                                                                H
984              SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A               and working-class people’s self-determination, such diligence
                would guarantee that they attain all the benefits they are entitled
                to by law. In that context, integrated data and modernized
                administration would not necessarily result in bad outcomes for
                poor communities. But automated decision-making in our current
                welfare system acts a lot like older, atavistic forms of punishment
B
                and containment. It filters and diverts. It is a gatekeeper, not a
                facilitator.”483
      The crux of the book is reflected in the following extract:
                “We all live in the digital poorhouse. We have always lived in the
C               world we built for the poor. We create a society that has no use
                for the disabled or the elderly, and then are cast aside when we
                are hurt or grow old. We measure human worth based only on
                the ability to earn a wage, and suffer in a world that undervalues
                care and community. We base our economy on exploiting the
                labor of racial and ethnic minorities, and watch lasting inequities
D               snuff out human potential. We see the world as inevitably riven
                by bloody competition and are left unable to recognize the many
                ways we cooperate and lift each other up.
                But only the poor lived in the common dorms of the county
                poorhouse. Only the poor were put under the diagnostic
E               microscope of scientific clarity. Today, we all live among
                the digital traps we have laid for the destitute.”484(Emphasis
                supplied)
      Automating Inequality demonstrates the problems with authentication
      and algorithmic technology and indicates that the system, which was
F     intended to provide assistance for the short term and help people out of
      poverty, has become a system to perpetuate poverty and injustice.
             262. Errors in biometrics matching imply that an individual will
      not be considered a part of the biometrics database. If a benefit or service
      is subject to the matching of biometrics, then any mismatch would result
G     in a denial of that benefit or service. Exclusion based on technological
      errors, with no fault of the individual, is a violation of dignity. The fate of
      individuals cannot be left to the vulnerabilities of technological algorithms
      or devices. ‘To live is to live with dignity’.485 Arbitrary exclusion from
      483
            Ibid, at pages 81-82
      484
            Ibid, at page 188
H     485
            Puttaswamy, at para 119
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                 985
                  [DR.[ASHOK
                        D. Y. CHANDRACHUD,
                               BHUSHAN, J.] J.]

entitled benefits or subsidies is a violation of dignity. If any such project         A
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 UIDAI486, which was of the view that the large                 B
magnitude of the Aadhaar project raised uncertainty about the accuracy
of biometrics.487 The Strategy Overview488published 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            C
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 successful in the long term. To ensure this, the                  D
        UIDAI will have to model de-duplication and authentication
        to be both effective and viable for participating agencies
        and service providers…
        3) Enrolment Risks: The project will have to be carefully
        designed to address risks of low enrolment – such as creating                 E
        sufficient touch points in rural areas, enabling and motivating
        Registrars, ensuring that documentary requirements don’t derail
        enrolment in disadvantaged communities – as well as managing
        difficulties in address verification, name standards, lack of
        information on date of birth, and hard to record fingerprints.                F
        4) Risks of Scale: The project will have to handle records
        that approach one billion in number. This creates significant
        risks in biometric de-duplication as well as in administration,
        storage, and continued expansion of infrastructure.
        5) Technology risks: Technology is a key part of the UID                      G
        program, and this is the first time in the world that storage,
486
      UIDAI Committee on Biometrics, Biometrics Design Standards For UID
      Applications, at page 4
487
      Ibid
488
      UIDAI, UIDAI Strategy Overview, (2010), available at http://www.prsindia.org/
      uploads/media/UID/UIDAI%20STRATEGY%20OVERVIEW.pdf                               H
986               SUPREME COURT REPORTS                               [2018] 8 S.C.R.


A             authentication and de-duplication of biometrics are being attempted
              on this scale. The authority will have to address the risks
              carefully – by choosing the right technology in the
              architecture, biometrics, and data management tools;
              managing obsolescence and data quality; designing the
              transaction services model and innovating towards the best
B
              possible result.
              6) Privacy and security risks: The UIDAI will have to ensure
              that resident data is not shared or compromised.”489 (Emphasis
              supplied)
      Technological error would result in authentication failures. The concerns
C
      raised by UIDAI ought to have been resolved before the implementation
      of the Aadhaar project. Poor connectivity in rural India was a major
      concern. The majority of the Indian population lives in rural areas. Even
      a small percentage of error results in a population of crores being affected.
      Denial of subsidies and benefits to them due to the infirmities of biometric
D     technology is a threat to good governance and social parity.
             263. The issue of exclusion needs to be considered at three
      different levels: (i) before the implementation of the Aadhaar Act, when
      biometrics were being used since 2009; (ii) under the provisions of the
      Act; and (iii) at the practical level during the implementation of the
E     Aadhaar programme.
      Before the enactment of the Aadhaar Act in 2016, the Standing
      Committee on Finance, which examined 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
F     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
G               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.”490 (Emphasis supplied)
      489
            Ibid, at page 38
      490
            Forty-Second Report of the Standing Committee on Finance (2011), available at
H           http://www.prsindia.org/uploads/media/UID/uid%20report.pdf, at page 30
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                                  987
                 [DR.[ASHOK
                      D. Y. CHANDRACHUD,
                              BHUSHAN, J.] J.]

The Economic Survey 2016-17 has adverted to authentication failures                                    A
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 income which they can count on, and which
provides the necessary material foundation for a life with access to basic
                                                                                                       B
goods and a life of dignity.491 UBI was to be implemented by providing
cash transfers (for availing benefits of social security schemes) to the
bank accounts of beneficiaries. The implementation of UBI was to be
undertaken through what is described as the JAM trinity: Jan-Dhan Bank
Accounts, Aadhaar data and Mobile phones. However, the Survey noted
that while Aadhaar is designed to solve the identification problem, it                                 C
cannot solve the “targeting problem” on its own. The Survey emphasized
the need to build state capacity and that “the state will still have to enhance
its capacities to provide a whole range of public goods”.492 The Survey
has recorded the statistics of authentication failures of Aadhaar in several
regions of the country:
                                                                                                       D
           “While Aadhaar coverage speed has been exemplary, with over
           a billion Aadhaar cards being distributed, some states report
           authentication failures: estimates include 49 percent failure rates
           for Jharkhand, 6 percent for Gujarat, 5 percent for Krishna District
           in Andhra Pradesh and 37 percent for Rajasthan. Failure to
           identify genuine beneficiaries results in exclusion errors.”493                             E

No failure rate in the provision of social welfare benefits can be regarded
as acceptable. Basic entitlements in matters such as foodgrain, can brook
no error. To deny food is to lead a family to destitution, malnutrition and
even death.
                                                                                                       F
       264. A recent Office Memorandum dated 19 December 2017
issued by the Cabinet Secretariat of the Union government 494
acknowledges that the Aadhaar enrolment process has not been
completed and that infrastructure constraints are capable of posing
difficulties in online authentication. The Memorandum provides that those
                                                                                                       G
491
      Government of India, Economic Survey 2016-17, available at https://
      w w w. t h e h i n d u c e n t r e . c o m / m u l t i m e d i a / a r c h i v e / 0 3 1 9 3 /
      Economic_Survey_20_3193543a.pdf, at                page 173
492
      Ibid, at page 174
493
      Ibid, at page 194
494
      Office Memorandum dated 19 December 2017, available at https://dbtbharat.gov.in/
      data/om/Office%20Memorandum_Aadhaar.pdf                                                          H
988            SUPREME COURT REPORTS                             [2018] 8 S.C.R.


A     beneficiaries who do not possess Aadhaar, shall be provided a subsidy,
      benefit or service based on alternate identification documents as
      contemplated by Section 7 of the Aadhaar Act. It also requires efforts to
      be made to ensure that all beneficiaries are facilitated to get enrolment
      under the Aadhaar programme. The Memorandum creates a mechanism
      for availing subsidies, benefits or services in cases where Aadhaar
B
      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
C
              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.
D
      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
E     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 board, not after severe deprivations have been
      caused by the denial of social welfare benefits.
             265. Exclusion of citizens from availing benefits of social security
F     schemes because of failures or errors in Aadhaar based biometric
      authentication has also been documented in research studies and academic
      writings published by members of civil society, including Reetika Khera
      and Jean Dreze. Similar testimonies have been recorded in affidavits
      submitted before this Court by civil society activists. Hearing the voices
      of civil society must be an integral part of the structural design of a
G
      project, such as Aadhaar. In the absence of a credible mechanism to
      receive and respond to feed-back, the state has to depend on its own
      personnel who may not always provide reliable and candid assessments
      of performance and failure.

H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                     989
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

       266. ABBA (Aadhaar based biometric authentication) refers to                       A
the practice of installing a Point of Sale (PoS) machine equipped with a
fingerprint reader and authenticating a person each time she accesses
her entitlements.495 Dreze has stated that for successful authentication
in PDS outlets, several technologies need to work simultaneously. 496
These are497:
                                                                                          B
      (a) Seeding of Aadhaar numbers: An eligible individual can
          become a beneficiary and access the PDS system only if her
          Aadhaar number is correctly seeded onto the PDS database and
          added to the household ration card;
      (b) Point of Sale (PoS) machines: The process at the PDS outlet                     C
          is dependent on the PoS machine. If it malfunctions, no
          transaction can be made. The first step in the process requires
          the dealer to enter the ration card number of the beneficiary’s
          household onto the PoS machine;
      (c) Internet connection: Successful working of the PoS machine                      D
          depends on internet 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
      (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.                                                                  F
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

495
       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-welfare-programmes.html                    G
496
       Jean Dreze, Dark clouds over the PDS, The Hindu (10 September 2016), available
       at https://www.thehindu.com/opinion/lead/Dark-clouds-over-the-PDS/
       article14631030.ece
497
       Anmol Somanchi, Srujana Bej, and Mrityunjay Pandey, Well Done ABBA? Aadhaar
       and the Public Distribution System in Hyderabad, Economic & Political Weekly
       (18 February 2017), Vol. 52, available at https://www.epw.in/journal/2017/7/web-
       exclusives/well-done-abba.html                                                     H
990               SUPREME COURT REPORTS                                  [2018] 8 S.C.R.


A     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. 498 Dreze
B
      has referred to the above procedure as “a wholly inappropriate technology
      for rural India”499. Network failures and other glitches routinely disable
      this sort of technology. Dreze has further observed that in villages with
      poor connectivity, it is a “recipe for chaos”500.
              267. A government-commissioned sample study501 in Andhra
C     Pradesh to ascertain the efficiency of Aadhaar-based social programmes
      in the case of subsidised grains indicated that technical deficiencies are
      depriving the poor of their access to food. The study was commissioned
      by the state government after it was found that 22% of the PDS
      beneficiaries did not take the ration in the month of May 2015. The
D     sample study, which covered five PDS outlets in three districts, found
      that half of the beneficiaries of PDS in the surveyed areas could not
      access their ration quota due to glitches, lack of training and mismatches
      linked to Aadhaar. In the survey, a majority of beneficiaries reported
      fingerprint mismatches and the inability of fair-price shop owners to
      operate point-of-sale (POS) devices correctly as major hurdles. Aadhaar
E     numbers did not match with ration card numbers in many cases.



      498
            Reetika Khera, Impact of Aadhaar on Welfare Programmes, Economic & Political
            Weekly, Vol. 52 (16 December 2017), available at https://www.epw.in/journal/
F           2017/50/special-articles/impact-aadhaar-welfare-programmes.html
      499
            Jean Dreze, Dark clouds over the PDS, The Hindu (10 September 2016), available
            at https://www.thehindu.com/opinion/lead/Dark-clouds-over-the-PDS/
            article14631030.ece
      500
            Ibid
      501
            Society for Social Audit, Accountability and Transparency, FP Shops Left Over
            Beneficiaries Report, available at http://www.socialaudit.ap.gov.in/SocialAudit/
G           Load Document? doc Name = Fair % 20 Price % 20 Work % 20 % 20 Shops % 20
            (Ration % 20 Card % 20 Holders) % 20-% 20 Beneficiaries % 20 Report. pdf &
            type = application. See also Aadhaar-based projects failing the poor, says Andhra
            go vt study, Hindustan Times (7 Octob er 2015), available at http s://
            www.hindustantimes.com/india/aadhaar-based-projects-failing-the-poor-says-
            andhra-govt-study/story-7MFBCeJcfl85Lc5zztON6L.html

H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                  991
                 [DR.[ASHOK
                      D. Y. CHANDRACHUD,
                              BHUSHAN, J.] J.]

Another survey502 of 80 households conducted in Hyderabad finds that                   A
despite the introduction of technology-intensive authentication 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
                                                                                       B
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?”503, based on a household survey in                      C
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                     D
authentication results in denial of food from ration shops. The household
is unable to get food rations for no fault of its own. The article comes to
the conclusion that the imposition of ABBA on the PDS in Jharkhand is
a case of “pain without gain”, as it has led to serious problems of exclusion
(particularly for vulnerable groups such as widows, the elderly and manual
workers). The article further notes that ABBA has neither failed to reduce             E
quantity fraud (which is the main form of PDS corruption in Jharkhand),
nor has it helped to address other critical shortcomings of the PDS in
Jharkhand, such as the problem of missing names in ration cards, the
identification of Antyodaya (poorest of the poor) households, or the
arbitrary power of private dealers. The article identifies poor internet               F
connectivity as one of the reasons for authentication failures and eventual
exclusion:
          “Sporadic internet connectivity is another major hurdle.
          Sometimes, light rain is enough to disrupt connectivity or the
502
      Anmol Somanchi, Srujana Bej, and Mrityunjay Pandey, Well Done ABBA? Aadhaar
                                                                                       G
      and the Public Distribution System in Hyderabad, Economic & Political Weekly,
      Vol. 52(18 February 2017), available at https://www.epw.in/journal/2017/7/web-
      exclusives/well-done-abba.html
503
      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).                                                      H
992               SUPREME COURT REPORTS                                    [2018] 8 S.C.R.


A               electricity supply. Every step in the ABBA process—ration card
                verification, biometric authentication, electronic upload of
                transactions, updating NFSA [National Food Security Act] lists
                and entitlements on the PoS504 [Point of Sale] machine—depends
                on internet connectivity. Further, even with stable connectivity,
                biometric authentication is not always easy. Biometric failures
B
                are especially common for two groups: the elderly, and manual
                labourers. Both are particularly vulnerable to food insecurity.”505
      The article regards the denial of basic services to the poor due to failure
      of ABBA as a form of grave injustice:
              “Imposing a technology that does not work on people who
C
              depend on it for their survival is a grave injustice.”506
              (Emphasis supplied)
      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
D     poorest of the poor.
      Reetika Khera looks at the impact of Aadhaar-integration with security
      schemes (primarily in MGNREGA, PDS and social security pensions).507
      The author also discusses briefly the impact of Aadhaar on liquefied
      petroleum gas (LPG) subsidy and the application of Aadhaar in the mid-
E     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”:
F
      504
            Ibid, at page 51. The article states: “[PoS] is a handheld device installed at every
            PDS outlet (“ration shop”) and connected to the Internet. The list of ration cards
            attached to that outlet, and their respective entitlements, are stored in the PoS
            machine and updated every month. When a cardholder turns ups, the PoS machine
            first “authenticates” her by matching her fingerprints with the biometric data
            stored against her Aadhaar number in the Central Identities Data Repository
G           (CIDR). The machine then generates a receipt with the person’s entitlements,
            which are also audible from a recorded message... The transaction details are also
            supposed to be entered by the dealer in the person’s ration card.”
      505
            Ibid, at page 55
      506
            Ibid, at page 58
      507
            Reetika Khera, Impact of Aadhaar on Welfare Programmes, Economic & Political
            Weekly, Vol. 52 (16 December 2017), available at https://www.epw.in/journal/
H           2017/50/special-articles/impact-aadhaar-welfare-programmes.html
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                             993
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

         “Savings or exclusion? The government claimed that Aadhaar                               A
         integration saved 399 crore up to 31 December 2016 (GoI 2017c).
         At a given level of benefits, a reduction in government expenditure
         in any particular transfer scheme can be on two counts: removal
         of ghosts and duplicates (“efficiency”); and a fall in the number
         of genuine beneficiaries (“shrinkage”), for instance, if they do
                                                                                                  B
         not link their Aadhaar numbers when required. Across welfare
         schemes, the government has been treating any reduction in
         expenditure as “savings,” even when it comes from shrinkage.
         This is true for SSP [social security pension] as well. For instance,
         in Rajasthan, pensioners were “mistakenly” recorded as dead
         and this was presented as Aadhaar-enabled savings (Yadav                                 C
         2016f). In Jharkhand too, pensioners’ names have been deleted
         because they did not complete Aadhaar-seeding formalities or
         pensions stopped due to seeding errors (Sen 2017a). Studying
         100 pensioners, selected from 10 randomly-selected villages from
         five blocks of Ranchi district in February 2017, Biswas (2017)
                                                                                                  D
         finds that 84% of her respondents receive pensions but irregularity
         in payments was a big issue. The remaining 16% were not
         receiving it due to Aadhaar-related issues.”508
Puja Awasthi documents the plight of individuals suffering from leprosy,
who have been denied pensions due to not being able to get enrolled into
the Aadhaar system. Leprosy can damage fingerprints and thus make                                 E
an individual incapable of providing biometrics. Awasthi’s article509 notes
that Aadhaar is capable of causing a denial of benefits or services to
86,000 citizens, who suffer from leprosy.
These writings show how in most cases, an authentication failure means
that the individual/household was denied the benefit of a social security                         F
programme for no fault of their own. Some have gone hungry. Some
reportedly lost their lives.510
508
      Ibid, at page 66
509
      Puja Awasthi, Good enough to vote, not enough for Aadhaar, People’s Archive of
      Rural India, available at https://ruralindiaonline.org/articles/good-enough-to-vote-
      not-enough-for-aadhaar                                                                      G
510
      Yet another Aadhaar-linked death? Denied rations for 4 months, Jharkhand woman
      dies of hunger, Scroll (3 Feb. 2018), available at: https://scroll.in/article/867352/
      yet-another-aadhaar-linked-death-jharkhand-woman-dies-of-hunger-after-denial-
      of-rations; Denied food because she did not have Aadhaar-linked ration card,
      Jharkhand girl dies of starvation, Scroll (16 Oct 2017), available at: https://scroll.in/
      article/854225/denied-food-because-she-did-not-have-aadhaar-linked-ration-card-
      jharkhand-girl-dies-of-starvation                                                           H
994             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


A            269. A person’s biometrics 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
B
      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
C     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
      mid-day 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
D
      which impact upon its structural probity. Structural design in delivering
      welfare entitlements must be compliant with structural due process, to
      be in accord with Articles 14 and 21. The Aadhaar project has failed to
      account for and remedy the flaws in its framework and design which
      lead to serious issues of exclusion. Dignity and rights of individuals cannot
E     be based on algorithms or probabilities. Constitutional guarantees cannot
      be subject to the vicissitudes of technology.
             270. Structural due process imposes requirements on public
      institutions and projects at the macro level. Structural due process
      requires that the delivery of social welfare benefits must be effective
F     and timely. Those who are eligible for the benefits must not face exclusion.
      Procedures for the disbursal of benefits must not be oppressive. They
      must be capable of compliance both by those who disburse and by those
      who receive the benefits. Deployment of technology must factor in the
      available of technological resources in every part of the coverage area
      and the prevailing levels of literacy and awareness. Above all, the design
G     of the project will be compliant with structural due process only if it is
      responsive to deficiencies, accountable to the beneficiaries and places
      the burden of ensuring that the benefits reach the marginalised on the
      state and its agencies.

H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                           995
              [DR.[ASHOK
                   D. Y. CHANDRACHUD,
                           BHUSHAN, J.] J.]

  H.6 Constitutional validity of Section 139AA of the Income Tax             A
      Act 1961
        271. Section 139AA of the Income Tax Act 1961 which was
inserted by the Finance Act 2017, mandates the quoting of an Aadhaar
number in the application for a Permanent Account Number (PAN) and
in the return of income tax. Failure to intimate an Aadhaar number results   B
in the PAN being deemed invalid retrospectively.
Section 139AA reads thus:
        “Quoting of Aadhaar number.- (1) Every person who is eligible
        to obtain Aadhaar number shall, on or after the 1st day of July,
        2017, quote Aadhaar number-                                          C

          (i) in the application form for allotment of permanent account
              number;
          (ii) in the return of income:
             Provided that where the person does not possess the             D
             Aadhaar Number, the Enrolment ID of Aadhaar application
             form issued to him at the time of enrolment shall be quoted
             in the application for permanent account number or, as the
             case may be, in the return of income furnished by him.
        (2) Every person who has been allotted permanent account             E
        number as on the 1st day of July, 2017, and 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:
                                                                             F
             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.
                                                                             G
        (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.

                                                                             H
996                SUPREME COURT REPORTS                          [2018] 8 S.C.R.


A                 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,
B                          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 Union of India (“Binoy Viswam”),511
C     a two judge Bench (consisting of Dr Justice AK Sikri and Justice Ashok
      Bhushan) upheld the constitutional validity of Section 139AA. Since the
      issue of whether privacy is a constitutionally guaranteed right was pending
      before a Bench of nine judges (the decision in Puttaswamy was still to
      be delivered), the two judge Bench did not dwell on the challenge to the
D     legislation on the ground of privacy and under Article 21. The Bench
      examined other submissions based on Articles 14 and 19 and on the
      competence of Parliament to enact the law.
             273. The decision in Binoy Viswam holdsthat in assessing the
      constitutional validity of a law, two grounds of judicial review are available:
E           (i)   The legislative competence of the law-making body which has
                  enacted the law, over the subject of legislation; and
            (ii) Compliance with Part III of the Constitution, which enunciates
                 the fundamental rights, and with the other provisions of the
                 Constitution.
F
      Holding that a third ground of challenge – that the law in question is
      arbitrary – is not available, the decision in Binoy Viswam placed reliance
      on the enunciation of law by a three judge Bench in State of A P v
      McDowell & Co (Mcdowell).512 McDowell ruled that while a challenge
      to a statute on the ground that it violates the principle of equality under
G     Article 14 is available, a statute cannot be invalidated on the ground that
      it is arbitrary:
                  “43…In other words, say, if an enactment is challenged as
                  violative of Article 14, it can be struck down only if it is found
      511
              (2017) 7 SCC 59
H     512
              (1996) 3 SCC 709
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                           997
                 [DR.[ASHOK
                      D. Y. CHANDRACHUD,
                              BHUSHAN, J.] J.]

          that it is violative of the equality clause/equal protection clause   A
          enshrined therein…
          No enactment can be struck down by just saying that it is arbitrary
          or unreasonable. Some or other constitutional infirmity has to be
          found before invalidating an Act.”513
In Binoy Viswam, the two judge Bench observed that the “contours” of            B
judicial review had been spelt out in State of Madhya Pradesh v Rakesh
Kohli, 514 and more recently in Rajbala v State of Haryana. 515
Reiterating the same position, Binoy Viswam holds:
          “81.Another aspect in this context, which needs to be emphasised,
          is that a legislation cannot be declared unconstitutional on the      C
          ground that it is “arbitrary” inasmuch as examining as to whether
          a particular Act is arbitrary or not implies a value judgment and
          the courts do not examine the wisdom of legislative choices and,
          therefore, cannot undertake this exercise.”516
        274. In the decision of the Constitution Bench in Shayara Bano          D
v Union of India (“Shayara Bano”),517Justice 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               E
(“Ajay Hasia”), 518 and a three judge Bench decision in DrK R
Lakshmanan v State of T N (“Lakshmanan”).519 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,520 it had been held
that equality had a substantive content which, simply put, was the antithesis   F
of arbitrariness. Consequently:
          “16...Wherever therefore there is arbitrariness in State
          action whether it be of the legislature or of the executive
513
      Ibid, at page 124
514
      (2012) 6 SCC 312
                                                                                G
515
      (2016) 2 SCC 445
516
      Ibid, at page 125
517
      (2017) 9 SCC 1
518
      (1981) 1 SCC 722
519
      (1996) 2 SCC 226
520
      (1974) 4 SCC 3                                                            H
998               SUPREME COURT REPORTS                           [2018] 8 S.C.R.


A               or of an “authority” under Article 12, Article 14
                immediately springs into action and strikes down such State
                action. In fact, the concept of reasonableness and non-
                arbitrariness pervades the entire constitutional scheme and is a
                golden thread which runs through the whole of the fabric of the
                Constitution.”521 (Emphasis supplied)
B
      The principle of arbitrariness was applied for invalidating a State law by
      the three judge Bench decision in Lakshmanan. It was, in this context
      that Justice Nariman speaking for two Judges in the Constitution Bench
      in Shayara Bano held that manifest arbitrariness is a component of
      Article 14. Hence, a law which is manifestly arbitrary would violate the
C     fundamental right to equality:
                “87. The thread of reasonableness runs through the entire
                fundamental rights chapter. What is manifestly arbitrary is
                obviously unreasonable and being contrary to the rule of law,
                would violate Article 14. Further, there is an apparent contradiction
D               in the three-Judge Bench decision in McDowell when 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
E               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
F               guaranteed to persons and citizens in Part III of the
                Constitution.”522
      Justice Nariman has observed that even after McDowell,challenges to
      the validity of legislation have been entertained on the ground of
      arbitrariness (Malpe Vishwanath Acharya v State of Maharashtra,523
G     Mardia Chemicals Ltd. v Union of India,524 State of Tamil Nadu v
      K Shyam Sunder, 525 Andhra Pradesh Dairy Development
      521
            Ajay Hasia at page 741
      522
            Ibid, at pages 91-92
      523
            (1998) 2 SCC 1
      524
            (2004) 4 SCC 311
H     525
            (2011) 8 SCC 737
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                         999
                  [DR.[ASHOK   BHUSHAN, J.] J.]
                        D. Y. CHANDRACHUD,

Corporation Federation v B Narasimha Reddy 526 and K T                        A
Plantation Private Limited v State of Karnataka527).
       275. In Shayara Bano, Justice Nariman has adverted to the
decisions which have followed McDowell including the two judge Bench
decision in Binoy Viswam. These decisions, in the view of Justice
Nariman, are therefore no longer good law:                                    B
         “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         C
         “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.”528           D

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          E
review in Binoy Viswam, which follows McDowell. Justice Kurian
Joseph, in the course of his decision has specifically agreed with the
view expressed by Justice Nariman:
         “5…However, on the pure question of law that a legislation, be it
         plenary or subordinate, can be challenged on the ground of           F
         arbitrariness, I agree with the illuminating exposition of law by
         Nariman J. I am also of the strong view that the constitutional
         democracy of India cannot conceive of a legislation which is
         arbitrary.”
      276. In Puttaswamy, the judgment delivered on behalf of four            G
Judges expressly recognized the impact of Article 14 in determining
whether a law which is challenged on the ground that it violates Article 21
526
      (2011) 9 SCC 286
527
      (2011) 9 SCC 1
528
      Ibid, at page 97                                                        H
1000               SUPREME COURT REPORTS                           [2018] 8 S.C.R.


 A     meets both the procedural as well as the substantive content of
       reasonableness. The Court held:
                 “291… the evolution of Article 21, since the decision in Cooper
                 indicates two major areas of change. First, the fundamental rights
                 are no longer regarded as isolated silos or watertight
 B               compartments. In consequence, Article 14 has been held to
                 animate the content of Article 21. Second, the expression
                 “procedure established by law” in Article 21 does not connote a
                 formalistic requirement of a mere presence of procedure in
                 enacted law. That expression has been held to signify the content
                 of the procedure and its quality which must be fair, just and
 C               reasonable. The mere fact that the law provides for the
                 deprivation of life or personal liberty is not sufficient to conclude
                 its validity and the procedure to be constitutionally valid must be
                 fair, just and reasonable. The quality of reasonableness does not
                 attach only to the content of the procedure which the law
 D               prescribes with reference to Article 21 but to the content of the
                 law itself. In other words, the requirement of Article 21 is not
                 fulfilled only by the enactment of fair and reasonable procedure
                 under the law and a law which does so may yet be susceptible to
                 challenge on the ground that its content does not accord with the
                 requirements of a valid law. The law is open to substantive
 E               challenge on the ground that it violates the fundamental right.”529
       The same principle has been emphasized in the following observations:
                 “294…Article 14, as a guarantee against arbitrariness, infuses
                 the entirety of Article 21. The interrelationship between the
 F               guarantee against arbitrariness and the protection of life and
                 personal liberty operates in a multi-faceted plane. First, it ensures
                 that the procedure for deprivation must 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
 G               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.”530

       529
             Ibid, at page 495
       530
 H           Ibid, at page 496
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              1001
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

       277. In Binoy Viswam,the two judge Bench held that while                 A
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
                                                                                B
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            C
        to be achieved to whatever extent possible. Various measures
        can be taken in this behalf. If one of the measures is introduction
        of Aadhaar into the tax regime, it cannot be denounced only
        because of the reason that the purpose would not be achieved
        fully. Such kind of menace, which is deep-rooted, needs to be           D
        tackled by taking multiple actions and those actions may be
        initiated at the same time. It is the combined effect of these
        actions which may yield results and each individual action
        considered in isolation may not be sufficient. Therefore, rationality
        of a particular measure cannot be challenged on the ground that
        it has no nexus with the objective to be achieved. Of course,           E
        there is a definite objective. For this purpose alone, individual
        measure cannot be ridiculed. We have already taken note of the
        recommendations of SIT on black money headed by Justice M.B.
        Shah. We have also reproduced the measures suggested by the
        Committee headed by Chairman, CBDT on “Measures to Tackle               F
        Black Money in India and Abroad”. They have, in no uncertain
        terms, suggested that one singular proof of identity of a person
        for entering into finance/business transactions, etc. may go a
        long way in curbing this 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        G
        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
                                                                                H
1002               SUPREME COURT REPORTS                           [2018] 8 S.C.R.


 A               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
 B
                 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
 C               biometrics will not allow that and, therefore, it may check the
                 growth of shell companies as well.
                 106. Having regard to the aforesaid factors, it cannot be said
                 that there is no nexus with the objective sought to be achieved.”531
       The court observed that it was a harsh reality of our times that the
 D     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
 E               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
 F               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.”532
       In this context, the court also noted that as a result of de-duplication
 G     exercises, 11.35 lakh cases of duplicate PANs / fraudulent PANs had
       been detected out of which 10.52 lakh cases pertained to individual
       assesses. The court upheld the decision of Parliament as the legislating
       531
             Ibid, at pages 134-135
       532
             Ibid, at page 146

 H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                1003
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

body of seeding PANs with Aadhaar as “the best method, and the only               A
robust method of de-duplication of PAN database”.
       278. The edifice of Section 139AA is based on the structure
created by the Aadhaar Act. Section 139AA of the Income Tax Act
1962 is postulated on the requirement of Aadhaar having been enacted
under a valid piece of legislation. The validity of the legislation seeding       B
Aadhaar to PAN is dependent upon and cannot be segregated from the
validity of the parent Aadhaar legislation. In fact, that is one of the reasons
why in Binoy Viswam, theArticle 21 challenge was not adjudicated
upon since that was pending consideration before a larger Bench. The
validity of seeding Aadhaar to PAN under Section 139AA must therefore
depend upon the constitutional validity of the Aadhaar Act as it is               C
determined by this Court. Further Rule 114B of the Income Tax Rules
1962 provides for a list of transactions for which a person must quote a
PAN card number. Rule 114B requires that a person must possess a
PAN card for those transactions. These are summarized below:
  •     “Sale or purchase of a motor vehicle or vehicle, as defined in            D
        clause (28) of section 2 of the Motor Vehicles Act, 1988 (59 of
        1988) which requires registration by a registering authority under
        Chapter IV of that Act, other than two wheeled vehicles.
  •     Opening an account [other than a time-deposit and a Basic
                                                                                  E
        Savings Bank Deposit Account] 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).
  •     Making an application to any banking company or a co-operative
                                                                                  F
        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) or to any other company or institution, for
        issue of a credit or debit card.
  •     Opening of a demat account with a depository, participant,
                                                                                  G
        custodian of securities or any other person registered under sub-
        section (1A) of section 12 of the Securities and Exchange Board
        of India Act, 1992 (15 of 1992).
  •     Payment to a hotel or restaurant against a bill or bills at any one
        time.
                                                                                  H
1004           SUPREME COURT REPORTS                        [2018] 8 S.C.R.


 A     •   Payment in connection with travel to any foreign country or
           payment 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.
 B
       •   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,—

 C
           •     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.
 D     •   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, —
 E         •     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;
 F         •     a Nidhi referred to in section 406 of the Companies Act,
                 2013 (18 of 2013); or
           •     a non-banking financial company which holds a certificate
                 of registration under section 45-IA of the Reserve Bank of
                 India Act, 1934 (2 of 1934), to hold or accept deposit from
 G               public.
       •   Payment for one or more pre-paid payment instruments, as
           defined in the policy guidelines for issuance and operation of
           pre-paid payment instruments issued by Reserve Bank of India
           under section 18 of the Payment and Settlement Systems Act,
 H         2007 (51 of 2007), to a banking company or a co-operative bank
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              1005
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

             to which the Banking Regulation Act, 1949 (10 of 1949), applies       A
             (including any bank or banking institution referred to in section
             51 of that Act) or to any other company or institution.
      •      Payment as life insurance premium to an insurer as defined in
             clause (9) of section 2 of the Insurance Act, 1938 (4 of 1938).
      •      A contract for sale or purchase of securities (other than shares)     B
             as defined in clause (h) of section 2 of the Securities Contracts
             (Regulation) Act, 1956 (42 of 1956).
      •      Sale or purchase, by any person, of shares of a company not
             listed in a recognised stock exchange.
      •      Sale or purchase of any immovable property.                           C
      •      Sale or purchase, by any person, of goods or services of any
             nature other than those specified above.”
The decision in Puttaswamy has recognised that protection of the
interests of the revenue constitutes a legitimate state aim in the three-
                                                                                   D
pronged test of proportionality. The circumstances which have been
adverted to in the decision in Binoy Viswam are a sufficient indicator of
the legitimate concerns of the revenue to curb tax evasion, by embarking
upon a programme for de-duplication of the Pan data base. A legitimate
state aim does exist. However, that in itself is not sufficient to uphold the
validity of the law, which must meet the other parameters of                       E
proportionality spelt out in Puttaswamy. The explanation to Section
139AA adopts the definition of the expressions ‘Aadhaar number’,
‘enrolment’ and ‘resident’ from the parent Aadhaar legislation. The
seeding of Aadhaar with Pan cards must depend for its validity on the
constitutional validity of the Aadhaar legislation. Hence, besides affirming
that the object of the measure in Section 139AA constitutes a legitimate           F
state aim, the decision of this Court in regard to the validity of Aadhaar
will impact upon the seeding of PAN with Aadhaar, which Section 139AA
seeks to achieve.
H.7 Linking of SIM cards and Aadhaar numbers
                                                                                   G
      279. In Avishek Goenka v Union of India533, 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
533
          (2012) 5 SCC 275
                                                                                   H
1006               SUPREME COURT REPORTS                            [2018] 8 S.C.R.


 A     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:
 B
                      “(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
 C               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 forms i.e. the existing one or
 D               the one now suggested by TRAI should be adopted as universal
                 application form for purchase of a SIM card?
                      (e) In absence of Unique ID card, whether updating of
                 subscriber details should be the burden of the licensee personally
                 or could it be permitted to be carried out through an authorised
 E               representative of the licensee?
                      (f) In the interest of national security and the public interest,
                 whether the database of all registered subscribers should be
                 maintained by DoT or by the licensee and how soon the same
                 may be made accessible to the security agencies in accordance
 F               with law?”534
       In pursuance of the above directive, DoT issued instructions on the
       verification of new mobile subscribers on 9 August 2012. On 6 January
       2016, TRAI addressed a communication to DoT recommending that the
       new procedure for subscriber verification was “cumbersome and resource
 G     intensive” and hence should be replaced by an Aadhaar linked e-KYC
       mechanism. Following this, DoT issued a directive on 16 August 2016 to
       launch an Aadhaar e-KYC service across all licenced service areas for
       issuance of mobile connections. However, it was stated that the e-KYC

       534
             Ibid, at page 283
 H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            1007
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

process was an alternative, in addition to the existing process of issuing       A
mobile connections to subscribers and would not be applicable for bulk,
outstation and foreign customers.
       280. A public interest litigation was filed before this Court under
Article 32 in Lokniti Foundation v Union of India535. The relief which
claimed was that there should be a definite mobile phone subscriber              B
verification to ensure a hundred per cent verification of subscribers.
Responding to the petition, the Union Government informed this Court
that DoT had launched an Aadhaar based e-KYC for issuing mobile
connections on 16 August 2016, by which customers as well as point of
sale agents of TSPs will be authenticated by UIDAI. A statement was
made by the learned Attorney General that an effective programme for             C
verification of prepaid connections would be devised within one year. In
view of the statement of the AG, the petition was disposed of by a two
judge Bench in terms of the following directions:
          “5. In view of the factual position brought to our notice during
          the course of hearing, we are satisfied, that the prayers made in      D
          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      E
          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.”536
                                                                                 F
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.
                                                                                 G
      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
535
      (2017) 7 SCC 155
536
      Ibid, at page 156                                                          H
1008             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


 A     Indian Telegraph Act 1885. Since the Central Government has the
       exclusive privilege of establishing, maintaining and working telegraphs,
       TSPs, it was urged, have to operate the telegraph under a license and
       the Central Government is entitled to impose conditions on the licensee.
       The instruction issued by DoT on 23 March 2017 has, it is urged, the
       sanction of Section 4 of the Indian Telegraph Act 1885.
 B
              282. We must at the outset note the ambit of the proceedings
       before this Court in Lokniti Foundation. In response to the public
       interest litigation, it was the Union Government which relied on its decision
       of 16 August 2016 to implement e-KYC verification for mobile
       subscribers. The petition was disposed of since the prayers were
 C     substantially dealt with and the court perceived that an effective process
       had been adopted to ensure identity verification together with verification
       of addresses. Existing subscribers were directed to be verified in a similar
       manner within one year. The issue as to whether the seeding of Aadhaar
       with mobile SIM cards was constitutionally valid did not fall for
 D     consideration.
              283. The decision to link Aadhaar numbers with SIM cards and
       to require e-KYC authentication of mobile subscribers has been looked
       upon by the Union government purely as a matter of efficiency of
       identification. TRAI’s letter dated 6 January 2016 states that the new
 E     procedure for subscriber verification which it had adopted was
       “cumbersome and resource intensive”. The issue as to whether Aadhaar
       linked e-KYC authentication would seriously compromise the privacy
       of mobile subscribers did not enter into the decision making calculus. In
       applying the test of proportionality, the matter has to be addressed not
       just by determining as to whether a measure is efficient but whether it
 F     meets the test of not being disproportionate or excessive to the legitimate
       aim which the state seeks to pursue. TRAI and DoT do have a legitimate
       concern over the existence of SIM cards obtained against identities which
       are not genuine. But the real issue is whether the linking of Aadhaar
       cards is the least intrusive method of obviating the problems associated
 G     with subscriber verification. The state cannot be oblivious to the need to
       protect privacy and of the dangers inherent in the utilization of the
       Aadhaar platform by telecom service providers. In the absence of
       adequate safeguards, the biometric data of mobile subscribers can be
       seriously compromised and exploited for commercial gain. While asserting
       the need for proper verification, the state cannot disregard the
 H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              1009
              [DR.[ASHOK
                   D. Y. CHANDRACHUD,
                           BHUSHAN, J.] J.]

countervailing requirements of preserving the integrity of biometric data       A
and the privacy of mobile phone subscribers. Nor can we accept the
argument that cell phone data is so universal that one can become blasé
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             B
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        C
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 ubiquitous feature of our           D
age. Mobile phones are not just instruments to facilitate a telephone
conversation. They are a storehouse of data reflecting upon personal
preferences, lifestyles and individual choices. They bear upon family
life, the workplace and personal intimacies. The conflation of biometric
data with SIM cards is replete with grave dangers to personal autonomy.         E
A constitution based on liberal values cannot countenance an
encroachment of this nature. The decision to link Aadhaar numbers to
SIM cards and to enforce a regime of e-KYC authentication clearly
does not pass constitutional muster and must stand invalidated. All TSPs
shall be directed by the Union government and by TRAI to forthwith
delete the biometric data and Aadhaar details of all subscribers within         F
two weeks. The above data and Aadhaar details shall not be used or
purveyed by any TSP or any other person or agency on their behalf for
any purpose whatsoever.
I Money laundering rules
                                                                                G
      286. Parliament enacted a law on money-laundering as part of a
concerted effort by the international community to deal with activities
which constitute a threat to financial systems and to the integrity and
sovereignty of nations. The Statement of Objects and Reasons
accompanying the introduction of the Bill contains an elucidation of the
reasons for the enactment:                                                      H
1010    SUPREME COURT REPORTS                          [2018] 8 S.C.R.


 A     “Introduction
       Money-laundering poses a serious threat not only to the financial
       systems of countries, but also to their integrity and sovereignty.
       To obviate such threats international community has taken some
       initiatives. It has been felt that to prevent money-laundering and
 B     connected activities a comprehensive legislation is urgently
       needed. To achieve this objective the Prevention of Money-
       laundering Bill, 1998 was introduced in the Parliament. The Bill
       was referred to the Standing Committee on Finance, which
       presented its report on 4th March 1999 to the Lok Sabha. The
       Central Government broadly accepted the recommendation of
 C     the Standing Committee and incorporated them in the said Bill
       along with some other desired changes.
       Statement of Objects and Reasons
       It is being realized, world over, that money-laundering poses a
 D     serious threat not only to the financial systems of countries, but
       also to their integrity and sovereignty. Some of the initiatives
       taken by the international community to obviate such threat are
       outlined below:-
       (a) the United Nations Convention Against Illicit Traffic in
 E         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,
 F         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
 G
           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-
 H
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                          1011
              [DR.[ASHOK   BHUSHAN, J.] J.]
                    D. Y. CHANDRACHUD,

              (i)   declaration of laundering of monies carried through    A
                    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;
                                                                           B
              (iv) declaring money-laundering to be an extraditable
                   offence; and
              (v) promoting international co-operation in investigation
                  of money-laundering.
       (d) the Political Declaration and Global Programme of Action        C
           adopted by United Nations General Assembly by its
           Resolution No. S-17/2 of 23rd February 1990, inter alia,
           calls upon the member States to develop mechanism to
           prevent financial institutions from being used for laundering
           of drug related money and enactment of legislation to           D
           prevent such laundering.
       (e) the United Nations in the Special Session on countering
           World Drug Problem Together concluded on the 8th to the
           10th June 1998 has made another declaration regarding the
           need to combat money-laundering. India is a signatory to
                                                                           E
           this declaration.”
      287. The expressions “beneficial owner, reporting entity and
intermediary” are defined respectively in clauses (fa), (wa) and (n) of
the Act thus:
       “(fa) “beneficial owner” means an individual who ultimately owns    F
       or controls a client of a reporting entity or the person on whose
       behalf a transaction is being conducted and includes a person
       who exercises ultimate effective control over a juridical person.
       (wa) “reporting entity” means a banking company, financial
       institution, intermediary or a person carrying on a designated      G
       business or profession.
       (n) “intermediary” means,-
       (i)   a stock-broker, sub-broker share transfer agent, banker to
             an issue, trustee to a trust deed, registrar to an issue,
             merchant banker, underwriter, portfolio manager, investment   H
1012            SUPREME COURT REPORTS                         [2018] 8 S.C.R.


 A                 adviser or any other intermediary associated with securities
                   market and registered under section 12 of the Securities
                   and Exchange Board of India Act, 1992 (15 of 1992); or
              (ii) an association recognised or registered under the Forward
                   Contracts (Regulation) Act, 1952 (74 of 1952) or any
 B                 member of such association; or
              (iii) intermediary registered by the Pension Fund Regulatory and
                    Development Authority; or
              (iv) a recognised stock exchange referred to in clause (f) of
                    section 2 of the Securities Contracts (Regulation) Act, 1956
 C                  (42 of 1956).”
       The Prevention of Money-Laundering (Maintenance of Records) Rules
       2005 were amended by the Prevention of Money-Laundering
       (Maintenance of Records) Second Amendment Rules 2017. By the
       amendment, several definitions were introduced with reference to the
 D     provisions of the Aadhaar Act. These are:
              “‘(aaa) “Aadhaar number” means an identification 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;
 E
              (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
 F
              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;
 G
              (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,
 H            2016…”
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            1013
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

Similarly, the expression “officially valid document” was amended to          A
read as follows:
        “(d) “officially valid document” means the passport, the driving
        licence, the Permanent Account Number (PAN) Card, the
        Voter’s Identity Card issued by [Election Commission of India,
        job card issued by NREGA duly signed by an officer of the State       B
        Government, the letter issued by the Unique Identification
        Authority of India containing details of name, address and
        Aadhaar number or any other document as notified by the
        Central Government in consultation with the [Regulator]:
        [Provided that where simplified measures are applied for verifying    C
        the identity of the clients the following documents shall be deemed
        to be officially valid documents:-
        (a) identity card with applicant’s Photograph issued by the
        Central/State Government Departments, Statutory/ Regulatory
        Authorities, Public Sector Undertakings, Scheduled Commercial         D
        Banks and Public Financial Institutions;
        (b) letter issued by a gazette officer, with a duly attested
        photograph of the person].”
       288. Rule 9 of the 2005 Rules requires every reporting entity to
carry out client due diligence at the time of the commencement of an          E
account-based relationship. Due diligence requires a verification of the
identity of the client and a determination of whether the client is acting
on behalf of a beneficial owner, who then has to be identified. Rule 9(3)
defines the expression “beneficial owner” for the purpose of sub-rule 1.
Rule 9(4) requires an individual client to submit an Aadhaar number.          F
Rule 9(3) and Rule 9(4) are extracted below:
        “9. Client Due Diligence.—(1) Every reporting entity shall—
        xxxxx
        xxxxx
                                                                              G
        (3) The beneficial owner for the purpose of sub-rule (1) shall be
        determined as under—
        (a) where the client is a company, the beneficial owner is the
        natural person(s), who, whether acting alone or together, or
                                                                              H
1014    SUPREME COURT REPORTS                             [2018] 8 S.C.R.


 A     through one or more juridical person, has a controlling ownership
       interest or who exercises control through other means.
       Explanation.—For the purpose of this sub-clause-
       1. “Controlling ownership interest”means ownership of or
       entitlement to more than twenty-five per cent. of shares or capital
 B     or profits of the company;
       2. “Control” shall include the right to appoint majority of
       the directors or to control the management or policy
       decisions including by virtue of their shareholding or management
       rights or shareholders agreements or voting agreements;
 C
       (b) where the client is a partnership firm, the beneficial owner
       is the natural person(s) who, whether acting alone or \ together,
       or through one or more juridical person, has I ownership of/
       entitlement to more than fifteen per cent. of capital or profits of
       the partnership;
 D
       (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
 E     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
 F
       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
 G     (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 verify the
       identity of any shareholder or beneficial owner of such
       companies.
 H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                1015
              [DR.[ASHOK
                   D. Y. CHANDRACHUD,
                           BHUSHAN, J.] J.]

        (4) Where the client is an individual, who is eligible to be              A
        enrolled for an Aadhaar number, he shall for the purpose of
        sub-rule (1) submit to the reporting entity, -
        (a) the Aadhaar number issued by the Unique Identification
        Authority of India; and
        (b) the Permanent Account Number or Form No. 60 as                        B
        defined in Income-tax Rules, 1962, 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:
        Provided that where an Aadhaar number has not been assigned
        to a client, the client shall furnish proof of application of enrolment   C
        for Aadhaar and in case the Permanent Account Number is not
        submitted, one certified copy of an ‘officially valid document’
        shall be submitted.
        Provided further that photograph need not be submitted by a
        client falling under clause (b) of sub-rule (1).”                         D
        (Emphasis supplied)
Sub-rule 15 of Rule 9 requires the reporting entity to carry out
authentication at the time of receipt of the Aadhaar number:
        “(15) Any reporting entity, at the time of receipt of the Aadhaar         E
        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.”
Sub-rule 17 allows a period of six months for a client who is eligible to be      F
enrolled for Aadhaar and to obtain a PAN to submit it upon the
commencement of the account-based relationship. Failure to do so, would
result in the account ceasing to be operational until the Aadhaar number
and PAN are submitted. Clauses a and c of sub-rule 17 provide as
follows :
                                                                                  G
        “(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
                                                                                  H
1016            SUPREME COURT REPORTS                             [2018] 8 S.C.R.


 A            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
 B            this notification, the client shall submit the Aadhaar 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
 C            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
 D            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
 E     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
 F
                     manner as to enable it to reconstruct individual transactions;
                 (b) furnish to the Director within such time as may be
                     prescribed, information relating to such transactions,
                     whether attempted or executed, the nature and value of
                     which may be prescribed;
 G
                 (c) verify the identity of its clients in such manner and
                     subject to such conditions, as may be prescribed;
                 (d)identify the beneficial owner, if any, of such of its
                    clients, as may be prescribed;
 H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              1017
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

          (e)maintain record of documents evidencing identity of                A
             its clients and beneficial owners as well as account
             files and business correspondence relating to its
             clients.
        (2) Every information maintained, furnished or verified, save as
        otherwise provided under any law for the time being in force,           B
        shall be kept confidential.
        (3) The records referred to in clause (a) of sub-section (1) shall
        be maintained for a period of five years from the date of
        transaction between a client and the reporting entity.
        (4) The records referred to in clause (e) of sub-section (1) shall      C
        be maintained for a period of five years after the business
        relationship between a client and the reporting entity has ended
        or the account has been close, whichever is later.
        (5) The Central Government may, by notification, exempt any
        reporting entity or class of reporting entities from any obligation     D
        under this Chapter.”
        (Emphasis supplied)
Section 12 imposes a statutory obligation on reporting entities to maintain
records and to verify the identity of their clients and beneficial owners in
                                                                                E
the manner prescribed. The procedure for and manner in which
information is furnished by reporting entities is specified under sub-section
1 of Section 12 by the Central Government in consultation with the
Reserve Bank of India. Section 15 provides as follows:
        “15. Procedure and manner of furnishing information by reporting
                                                                                F
        entities:-
        The Central Government may, in consultation with the Reserve
        Bank of India, prescribe the procedure and the manner of
        maintaining and furnishing information by a reporting entity under
        sub-section (1) of Section 12 for the purpose of implementing
        the provisions of this Act.”                                            G

        (Emphasis supplied)
The rule making power is referable to the provisions of Section 73, which
insofar as is material, provides as follows:
                                                                                H
1018              SUPREME COURT REPORTS                           [2018] 8 S.C.R.


 A              “73. Power to make rules-
                (1) The Central Government may, by notification, make rules
                    for carrying out the provisos of this Act.
                (2) In particular, and without prejudice to the generality of the
                    foregoing power, such rules may provide for all or any of
 B                  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;

 C                (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
 D                    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
 E     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 Group537, this Court has re-affirmed the well-settled legal test
 F     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 legislation, the State gives
                effect to its legislative policy. Such legislation, however, must
                not be ultra vires the Constitution. A subordinate legislation apart
 G              from being intra vires the Constitution, should not also be ultra
                vires the parent Act under which it has been made. A subordinate
                legislation, it is trite, must be reasonable and in consonance with
                the legislative policy as also give effect to the purport and object
                of the Act and in good faith.”
       537
 H           (2006) 3 SCC 434
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             1019
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

The essential legislative function consists in the determination of legislative   A
policy and of formally enacting it into a binding rule of conduct. Once
this is carried out by the legislature, ancillary or subordinate functions
can be delegated. Having laid down legislative policy, the legislation may
confer discretion on the executive to work out the details in the exercise
of the rule making power, though, in a manner consistent with the plenary
                                                                                  B
enactment (J K Industries Ltd v Union of India538).
      291. The Reserve Bank of India had issued a Master Circular
dated 25 February 2016 in exercise of its statutory powers under Section
35A of the Banking Regulation Act 1949 (read with Section 56) and
Rule 9(14) of the Prevention of Money-Laundering (Maintenance of
Records) Rules 2005. Following the amendment of the PMLA Rules,                   C
the Master Circular of the Reserve Bank has been updated on 20 April
2018.
The basic issue which needs to be addressed is whether the amendments
which were brought about to the PMLA Rules in 2017 meet the test of
proportionality.                                                                  D

        292. In 2005, the Central Government in consultation with the
Reserve Bank of India notified the Prevention of Money-Laundering
(Maintenance of Records) Rules 2005 under Section 73 of the parent
Act. The expression ‘officially valid document’ was defined in Rule 2(d)
in the following terms :                                                          E
         “(d) “officially valid document” means the passport, the driving
         licence, the Permanent Account Number (PAN) Card, the
         Voter’s Identity Card issued by539 [Election Commission of India,
         job card issued by NREGA duly signed by an officer of the State
         Government, the letter issued by the Unique Identification               F
         Authority of India540 [or the National Population Register]
         containing details of name, address and Aadhaar number or any
         other document as notified by the Central Government in
         consultation with the [Regulator];”
Rule 9(4) required the submission to the reporting entity, where the client       G
is an individual, a certified copy of an officially valid document containing
details of identity and address. Rule 9(4) read as follows :
538
    (2007) 13 SCC 673
539
      Substituted by G.S.R. 980(E), dated 16-12-2010 (w.e.f. 16-12-2010)
540
      Inserted by G.S.R. 544(E)
                                                                                  H
1020             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


 A             “(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:”
 B
       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
 C     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 details of name, address and details of Aadhaar
       number. or any other document notified by the Central Government in
 D     consultation with the Regulator.
             293. In the Master Circular issued by the Reserve Bank of India
       on 25 February 2016, a provision was made for the submission by
       customers, at their option, of one of the six officially valid documents
       (OVDs) for proof of identity and address. Rule 3(vi) defined the
 E     expression ‘officially valid document’ in similar terms:
               “(vi) “officially valid document” means the passport, the driving
               licence, the Permanent Account Number (PAN) Card, the
               Voter’s Identity Card issued by the Election Commission of India,
               job card issued by NREGA duly signed by an officer of the State
               Government, letter issued by the Unique Identification Authority
 F
               of India containing details of name, address and Aadhaar number.
       Explanation: Customers, at their option, shall submit one of the six OVDs
       for proof of identity and proof of address.”
       Customer due diligence and on-going due diligence were defined thus:
 G             “Customer Due Diligence (CDD)” means indemnifying and
               verifying the customer and the beneficial owner using ‘Officially
               Valid Documents’ as a ‘proof of identity’ and a ‘proof of address’.
               “On-going Due Diligence” means regular monitoring of
               transactions in accounts to ensure that they are consistent with
 H             the customers’ profile and source of funds.”
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              1021
              [DR.[ASHOK
                   D. Y. CHANDRACHUD,
                           BHUSHAN, J.] J.]

       294. Chapter III of the Master Circular provided for regulated           A
entities (including banks) to specify a customer acceptance policy. Clause
15 of the Master Circular inter alia specified that customers shall not
be required to furnish additional OVDs if the OVD already submitted,
contained both proof of identity and address. Chapter VI which provided
for a due diligence procedure allowed customers to submit one of the six
                                                                                B
OVDs for proof of identity and address. Under Part V of Chapter VI,
banks were required to conduct on-going due diligence particularly in
regard to large and complex transactions above a threshold. Clause 39
of the Circular provided for a partial freezing and closure of accounts:
        “39. Partial freezing and closure of accounts
                                                                                C
        (a) Where REs are unable to comply with the CDD
            requirements mentioned at Part I to V above, they shall not
            open accounts, commence business relations or perform
            transactions. In case of existing business relationship which
            is not KYC compliant, banks shall ordinarily take step to
            terminate the existing business relationship after giving due       D
            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:                                         E

              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         F
                     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
                                                                                G
                     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’,
                                                                                H
1022             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


 A                   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 ‘partial freezing’, the reason for that shall be
                   communicated to account holder.”
 B     Chapter VIII provided for reporting requirements to the Financial
       Intelligence Unit. Chapter IX dealt with compliance with requirements/
       obligations under international agreements. Clause 58 of Chapter X
       stipulated reporting requirements under the Foreign Account Tax
       Compliance Act (FATCA) and Common Reporting Standards (CRS).
 C            295. As a result of the amendment to the Rules brought about in
       2017, Rule 9(4) mandates that in the case of a client who is an individual,
       who is eligible to be enrolled for an Aadhaar number, submission of the
       Aadhaar number is mandatory. Instead of furnishing an option to submit
       one of six OVDs, submission of Aadhaar number alone is mandated.
 D     Where an Aadhaar number has not been assigned, proof of an application
       for enrolment is required to be submitted. Under Rule 9(15), the reporting
       entity at the time of receipt of an Aadhaar number is under an obligation
       to carry out authentication using either the e-KYC authentication facility
       or the yes/no authentication provided by UIDAI. If a client who is eligible
       to be enrolled for Aadhaar and to obtain a PAN card does not submit its
 E     details while commencing an account based relationship, there is a period
       of six months reserved for submission. Those who already have accounts
       are required to submit their Aadhaar numbers by a stipulated date. Failure
       to do so, renders the account subject to the consequence that it shall
       cease to be operational until compliance is effected.
 F     Following the amendments to the rules, the Reserve Bank has updated
       its Master Circular on 20 April 2018 to bring it into conformity with the
       amended rules.
               296. In deciding whether the amendment brought about in 2017
       to the rules is valid, it is necessary to bear in mind what has already been
 G     set out earlier on the aspect of proportionality. Does the requirement of
       the submission or linking of an Aadhaar number to every account- based
       relationship satisfy the test of proportionality?
       The state has a legitimate aim in preventing money-laundering. In fact, it
       is with a view to curb and deal with money-laundering that the original
 H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               1023
              [DR.[ASHOK
                   D. Y. CHANDRACHUD,
                           BHUSHAN, J.] J.]

version of the Master Circular as well as its updated version impose             A
conditions for initial and on-going due diligence. The Reserve Bank has
introduced several reporting requirements including those required to
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
                                                                                 B
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           C
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
                                                                                 D
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 perfectly genuine
customer who is involved in no wrongdoing would be deprived of the
use of the moneys and investments reflected in the account, in violation
of Article 300A of the Constitution purely on an assumption that he or           E
she has indulged in money-laundering. The classification is over-inclusive:
a uniform requirement of such a nature cannot be imposed on every
account based relationship irrespective of the risks involved to the financial
system. The account of a pensioner or of a salaried wage earner cannot
be termed with the same brush as a high net-worth individual with cross-
                                                                                 F
border inflows and outflows. Treating every account holder with a highly
intrusive norm suffers from manifest arbitrariness. Moreover, there is
no specific provision in the Act warranting a consequence of an account
holder being deprived of the moneys standing in the account, even if for
a temporary period. Section 12(1)(c) empowers a reporting entity to
verify the entity or its client in such a manner and “subject to such            G
conditions” as may be prescribed. This does not envisage a consequence
of an account ceasing to be operational. Blocking an account is a
deprivation of property under Article 300A. The Union Government has
been unable to discharge the burden of establishing that this was the
least intrusive means of achieving its aim to prevent money-laundering
                                                                                 H
1024            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


 A     or that its object would have been defeated if it were not to impose the
       requirement of a compulsory linking of Aadhaar numbers with all account
       based relationships with the reporting entity. Money-laundering is indeed
       a serious matter and the Union Government is entitled to take necessary
       steps including by classifying transactions and sources which give rise
       to reasonable grounds for suspecting a violation of law. But, to impose a
 B
       uniform requirement of linking Aadhaar numbers with all account based
       relationships is clearly disproportionate and excessive. It fails to meet
       the test of proportionality and suffers from manifest arbitrariness. While
       we have come to the above conclusion, we clarify that this would not
       preclude the Union Government in the exercise of its rule making power
 C     and the Reserve Bank of India as the regulator to re-design the
       requirements in a manner that would ensure due fulfillment of the object
       of preventing money-laundering, subject to compliance with the principles
       of proportionality as outlined in this judgment.
       J Savings in Section 59
 D           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
 E             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.”
 F            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
 G     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 are in breach of
       fundamental rights, Section 59 is invalid. Moreover, Section 59 does not
       operate to validate the collection of biometric data prior to the
 H     enforcement of the Aadhaar Act.
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                          1025
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

It has been submitted that a validating law must remove the cause of           A
invalidity of previous acts: it would not be effective if it simply deems a
legal consequence without amending the law from which the
consequence could follow. In the present case, it has been contended,
Section 59 does not create a legal fiction where the Aadhaar Act is
deemed to have been in existence since 2009 and that it only declares a
                                                                               B
legal consequence of the acts done by the Union since 2009.
It has also been submitted that Section 59 is invalid and unconstitutional
inasmuch as for Aadhaar enrolments done before 2016, there was neither
informed consent nor were any procedural guarantees and safeguards
provided under a legal framework. Section 59, it is contended, cannot
cure the absence of consent and other procedural safeguards, provided          C
under the Aadhaar Act, to the enrolments done prior to the enactment of
the Act.
       299. The respondents have submitted that Section 59 protects the
actions taken by the Central government. It does not contemplate the
maintenance of any data base, containing identity information, by the          D
State governments. The State governments, it is urged, have destroyed
the biometric data collected during Aadhaar enrolments before the Act
came into force, from their server. It has been contended that Section
59 is retrospective in nature as it states that it shall operate from an
earlier date.                                                                  E
The Respondents have relied upon the judgments of this Court in
WestRamnad Electric Distribution Co. Ltd. v State of
Madras541(“West Ramnad”), State of Mysore v D. Achiah Chetty,
Etc542(“Chetty”), and Hari Singh v Military Estate Officer543 (“Hari
Singh”) to contend that the legislature can, by retrospective operation,       F
cure the invalidity of actions taken under a law which is void for violating
fundamental rights.
It has also been contended that before the advent of the Aadhaar Act,
no individual has been enrolled under compulsion, and since all enrolments
were voluntary, they cannot be considered to be in breach of Article 21        G
or any other fundamental right. It is further submitted that non-
adjudication of the issue of whether collection of identity information

541
      (1963) 2 SCR 747
542
      (1969) 1 SCC 248
543
      (1972) 2 SCC 239
                                                                               H
1026                SUPREME COURT REPORTS                         [2018] 8 S.C.R.


 A     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 Nadu544 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.
 B            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
 C     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
 D     individual “for any purpose”. The proviso to Section 57 provides that the
       use of an Aadhaar number under the Section shall be subject to the
       procedure and obligations under Section 8 and Chapter VI of the Act.
       Section 8 sets out the procedure for authentication. It states that for
       authentication, a requesting entity shall obtain the consent of an individual
       before collecting identity information and shall ensure that the identity
 E     information is only used for submission to the Central Identities Data
       Repository for authentication. It does not envisage collection of identity
       information for any other purpose. Chapter VI of the Act, which deals
       with protection of information, provides for security and confidentiality
       of identity information collected under the Act, imposes restrictions on
 F     sharing that information and classifies biometrics as sensitive personal
       information.
              301. The scheme of the Aadhaar Act creates a system of
       identification through authentication of biometric information and
       authorises the Central and State governments to assign the task of
 G     collecting individual biometric information for the purpose of generation
       of Aadhaar numbers to private entities. The Act authorises the use of
       Aadhaar numbers by the Central government, state governments and
       the private entities for establishing the identity of a resident for any

       544
             (2017) 3 SCC 362
 H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              1027
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

purpose. The Act also contains certain safeguards regarding storage                A
and use of biometric information. The actions taken before the enactment
of the Aadhaar Act have to be tested upon the touchstone of the legal
framework provided under the Act.
       302. Section 59 is a validating provision. It seeks to validate all
the actions of the Central Government prior to the Aadhaar Act, which              B
were done under the notifications of 28 January 2009 and 12 September
2015. Section 59 does not validate actions of the state governments or
of private entities. Acts undertaken by the State governments and by
private entities are not saved by Section 59.
       303. The Planning Commission’s notification dated 28 January                C
2009 created UIDAI, while giving it the responsibility of laying down a
plan and policies to implement a unique identity (UID) scheme. UIDAI
was only authorized to own and operate the UID database, with a further
responsibility for the updation and maintenance of the database on an
ongoing basis. Significantly, the 2009 notification did not contain any
reference to the use of biometrics for the purpose of the generation of            D
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           E
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.545 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       F
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 authorised
by the 2009 notification, Section 59 of the Aadhaar Act does not validate
these actions.                                                                     G


545
      Press Information Bureau, UIDAI generates a billion (100 crore) Aadhaars A
      Histo ric Moment for India, available at http://pib.nic.in/newsite/
      PrintRelease.aspx?relid=138555
                                                                                   H
1028               SUPREME COURT REPORTS                                    [2018] 8 S.C.R.


 A            304. The collection of the biometrics of individuals impacts their
       privacy and dignity. Informed consent is crucial to the validity of a state
       mandated measure to collect biometric data. Encroachment on a
       fundamental right requires the enacting of a valid law by the legislature.546
       The law will be valid only if it meets the requirements of permissible
       restrictions relating to each of the fundamental rights on which there is
 B
       an encroachment. Privacy animates Part III of the Constitution.547 The
       invasion of any right flowing from privacy places a heavy onus upon the
       State to justify its actions. Nine judges of this Court in Puttaswamy
       categorically held that there must be a valid law in existence to encroach
       upon the right to privacy. An executive notification does not satisfy the
 C     requirement of a valid law contemplated in Puttaswamy. A valid law, in
       this case, would mean a law enacted by Parliament, which is just, fair
       and reasonable. Any encroachment upon the fundamental right to privacy
       cannot be sustained by an executive notification.
       There is also no merit in the submission of the Respondents that prior to
 D     the enactment of the Aadhaar Act, no individual has been enrolled under
       compulsion, and since all enrolments were voluntary, these cannot be
       considered to be in breach of Article 21 or any other fundamental right.
       The format of the first two enrolment forms used by UIDAI, under
       which around 90 crore enrolments were done, had no mention of informed
       consent or the use of biometrics. Hence, this submission is rejected.
 E
       Apart from the existence of a valid law which authorises an invasion of
       privacy, Puttaswamy requires that the law must have adequate
       safeguards for the collection and storage of personal data. Data protection,
       which is intrinsic to privacy, seeks to protect the autonomy of the
       individual. The judgment noted the centrality of consent in a data protection
 F     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
 G
       546
             A Constitution Bench of this Court in State of Madhya Pradesh v. Thakur Bharat
             Singh (AIR 1967 SC 1170) held: “All executive action which operates to the
             prejudice of any person must have the authority of law to support it… Every Act
             done by the Government or by its officers must, if it is to operate to the prejudice
             of any person, be supported by some legislative authority.”
       547
             Puttaswamy, at para 272
 H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              1029
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

notification and prior to the Aadhaar Act suffers from the absence of           A
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
                                                                                B
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      C
retrospectively to acts which were not offences at the time when they
took place. Article 20(1) of the Constitution provides that “No person
shall be convicted of any offence except for violation of the law in force
at the time of the commission of the act charged as an offence”. The
application of the criminal provisions of the Act, provided under Chapter
                                                                                D
VII of the Act which deals with “Offences and Penalties”, cannot be
extended to the period prior to the enactment of the Aadhaar Act.
       305. The Respondents submit that the collection of biometrics
prior to the Aadhaar Act was adequately safeguarded by the provisions
of the Information Technology Act 2000; specifically those provisions,
which were inserted or amended by the Information Technology                    E
(Amendment) Act, 2008.
Section 43A of the Act provides for compensation for failure to protect
data:
        “Where a body corporate, possessing, dealing or handling any            F
        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            G
        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;
                                                                                H
1030            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


 A            (ii) “reasonable security practices and procedures” means
                     security practices and procedures designed to protect such
                     information from unauthorised access, damage, use,
                     modification, disclosure or impairment, as may be specified
                     in an agreement between the parties or as may be specified
                     in any law for the time being in force and in the absence of
 B
                     such agreement or any law, such reasonable security
                     practices and procedures, as may be prescribed by the
                     Central Government in consultation with such professional
                     bodies or associations as it may deem fit.
              (iii) “sensitive personal data or information” means such
 C                  personal information as may be prescribed by the
                    Central Government in consultation with such
                    professional bodies or associations as it may deem
                    fit.”
                   (Emphasis supplied)
 D
             306. Rule 3 of the Information Technology (Reasonable Security
       Practices and Procedures and Sensitive Personal Data or Information)
       Rules, 2011 made by the Central government under Section 43A, defines
       “sensitive personal data or information”:

 E            “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 ;
 F
              (iii) physical, physiological and mental health condition;
              (iv) sexual orientation;
              (v) medical records and history;
              (vi) Biometric information;
 G
              (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.
 H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                                      1031
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

                 Provided that, any information that is freely available or                A
                 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:                                      B
          “66C. Punishment for identity theft.-
          Whoever, fraudulently548 or dishonestly549 make use of the
          electronic signature, password or any other unique identification
          feature of any other person, shall be punished with imprisonment
          of either description for a term which may extend to three years                 C
          and shall also be liable to fine which may extend to rupees one
          lakh.”      (Emphasis supplied)
Section 66E provides for punishment for the violation of the privacy of
an individual:
                                                                                           D
          “Whoever, intentionally or knowingly captures, publishes or
          transmits the image of a private area of any person without his
          or her consent, under circumstances violating the privacy of that
          person, shall be punished with imprisonment which may extend
          to three years or with fine not exceeding two lakh rupees, or
          with both.”                                                                      E
The explanation to the Section provides that “transmit” means to
electronically send a visual image with the intent that it be viewed by a
person or persons. “Capture”, with respect to an image, has been defined
to mean videotaping, photographing, filming or recording by any means.
“Private area” means the “naked or undergarment clad genitals, pubic                       F
area, buttocks or female breast.” “Publishes” has been defined as
reproduction in the printed or electronic form and making it available for
public.

                                                                                           G
548
      Section 25, Indian Penal Code states: “”Fraudulently”.—A person is said to do a
      thing fraudulently if he does that thing with intent to defraud but not otherwise”
549
      Section 24, Indian Penal Code states: “”Dishonestly”- Whoever does anything
      with the intention of causing wrongful gain to one person or wrongful loss to
      another person, is said to do that thing “dishonestly”
                                                                                           H
1032             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


 A     Section 72A provides for punishment for disclosure of information in
       breach of a lawful contract:
               “Save as otherwise provided in this Act or any other law for the
               time being in force, any person including an intermediary who,
               while providing services under the terms of lawful contract, has
 B             secured access to any material containing personal information
               about another person, with the intent to cause or knowing that
               he is likely to cause wrongful loss or wrongful gain discloses,
               without the consent of the person concerned, or in breach of a
               lawful contract, such material to any other person shall be
               punished with imprisonment for a term which may extend to
 C             three years, or with a fine which may extend to five lakh rupees,
               or with both.” (Emphasis supplied)
       Section 43A applies only 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
 D     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.
 E     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
 F     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 the
       Aadhaar Act. Hence, the Attorney General is not correct in submitting
       that India operated under a regime of comprehensive safeguards
 G     governing biometric data during the period when the Aadhaar project
       was governed by an executive notification, in the absence of a legislative
       framework. The absence of a legislative framework rendered the
       collection of biometric data vulnerable to serious violations of privacy.
       There are two distinct facets here. First, the absence of a legislative
       framework for the Aadhaar project between 2009 and 2016 left the
 H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               1033
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

biometric data of millions of Indian citizens bereft of the kind of protection   A
which a law, as envisaged in Puttaswamy, must provide to
comprehensively protect and enforce the right to privacy. Second, the
notification of 2009 does 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
                                                                                 B
enforcement of the Act. Privacy is of paramount importance. No invasion
of privacy can be allowed without proper, adequate and stringent
safeguards providing not only penalties for misuse or loss of one’s personal
information, but also for protection of that person.
       307. The Respondents have relied upon several judgments where
this Court has upheld validating statutes, which, they contend, are similar      C
to Section 59. The first decision which needs to be discussed is the
judgment of the Constitution Bench in West Ramnad, which dealt with
a validating statute of the Madras Legislature. Act 43 of 1949 of the
Madras Legislature which sought to acquire electricity undertakings in
the state was struck down for want of legislative competence. In the             D
meantime, the Constitution came into force, and under the Seventh
Schedule, the State acquired legislative competence. A fresh law was
enacted in 1954. Section 24 sought to validate actions done and taken
under the 1949 Act. Section 24 provided thus:
        “Orders made, decisions or directions given, notifications issued,       E
        proceedings taken and acts or things done, in relation to any
        undertaking taken over, if they would have been validly made,
        given, issued, taken or done, had the Madras Electricity
        Supply Undertakings (Acquisition) Act 1949 (Madras Act
        43 of 1949), and the rules made thereunder been in force
        on the date on which the said orders, decisions or directions,           F
        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               G
        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:                                                     H
1034            SUPREME COURT REPORTS                          [2018] 8 S.C.R.


 A            “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
 B
              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 and in force at that time.
              The second part of the section provides that the notifications
 C            covered by the first part are declared by this Act to have been
              validly issued; the expression “hereby declared” clearly means
              “declared by this Act” and that shows that the notifications
              covered by the first part would be treated as issued under the
              relevant provisions of the Act and would be treated as validly
              issued under the said provisions. The third part of the section
 D
              provides that the statutory declaration about the validity of the
              issue of the notification would be subject to this exception that
              the said notification should not be inconsistent with or repugnant
              to the provisions of the Act. In other words, the effect of this
              section is that if a notification had been issued properly
 E            under the provisions of the earlier Act and its validity could
              not have been impeached if the said provisions were
              themselves valid, it would be deemed to have been validly
              issued under the provisions of the Act, provided, of
              course, it is not inconsistent with the other provisions of
              the Act. The section is not very happily worded, but on its fair
 F
              and reasonable construction, there can be no doubt about its
              meaning or effect.” (Emphasis supplied)
             308. The second decision is a four judge Bench judgment in
       Chetty, which dealt with the competence of a legislature to remedy a
       discriminatory procedure retrospectively. There were two Acts in Mysore
 G     for acquisition of private land for public purposes - the Mysore Land
       Acquisition Act, 1894 and the City of Bangalore Improvement Act, 1945.
       The respondent challenged a notification which was issued under the
       1894 Act for the acquisition of his land in Bangalore, on the ground that
       recourse to the provisions of the Land Acquisition Act was discriminatory
 H     because in other cases the provisions of the Improvement Act were
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              1035
             [DR.[ASHOK
                  D. Y. CHANDRACHUD,
                          BHUSHAN, J.] J.]

applied. The High Court accepted the contention, against which there           A
was an appeal to this Court. During the pendency of the appeal, the
Bangalore Acquisition of Lands (Validation) Act, 1962 was passed. The
1962 Act contained two provisions. Section 2 provided:
       “2. Validation of certain acquisition of lands and proceedings
       and orders connected therewith.-                                        B
       (1) Notwithstanding anything contained in the City of Bangalore
       Improvement Act, 1945 (Mysore Act 5 of 1945), or in any other
       law, or in any judgment, decree or order of any court:
         (a) every acquisition of land for the purpose of improvement,
             expansion or development of the City of Bangalore or any          C
             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               D
             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           E
             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            F
             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 connection with any such
             acquisition shall be called in question on the ground that the
             State Government was not competent to make acquisition            G
             of land for the said purpose under the said Act or on any
             other ground whatsoever;
         (b) any land to the acquisition of which the provisions of clause
             (a) are applicable shall, after it has vested in the State
             Government, be deemed to have been transferred, or stand          H
1036             SUPREME COURT REPORTS                            [2018] 8 S.C.R.


 A                   transferred, as the case may be, to the Board of Trustees
                     for the improvement of the City of Bangalore.” (Emphasis
                     supplied)
       The Act of 1962 validated all acquisitions made, proceedings held,
       notifications issued or orders made under the Mysore Land Acquisition
 B     Act before the validating law came into force. The Validation Act was
       challenged on the ground that it was discriminatory to provide two Acts
       which prescribed two different procedures under the acquisition laws in
       the same field. This Court found that the legislature retrospectively made
       a single law for the acquisition of properties and upheld the validating
       Act. It was held:
 C
               “15. If two procedures exist and one is followed and the other
               discarded, there may in a given case be found discrimination.
               But the Legislature has still the competence to put out of action
               retrospectively one of the procedures leaving one procedure only
               available, namely, the one followed and thus to make disappear
 D             the discrimination. In this way a Validating Act can get over
               discrimination. Where, however, the legislative competence is
               not available, the discrimination must remain for ever, since that
               discrimination can only be removed by a legislature having power
               to create a single procedure out of two and not by a legislature
 E             which has not that power.”
              309. In West Ramnad, the validation depended upon the condition
       that a notification or act ought to have been validly issued or done under
       the earlier statute, presuming that the earlier Act was itself valid at that
       time. In the present case, there was no earlier law governing the actions
 F     of the government for the collection of biometric data. The Aadhaar Act
       was notified in 2016. The Planning Commission’s notification of 2009
       and the Ministry of Information and Technology’s notification of 2015
       were not issued under any statute. Therefore, the validating law in West
       Ramnad was clearly of a distinct genre. West Ramnad will be of no
       assistance to the Union of India.
 G
              310. 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
 H
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             1037
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

legislature enacted a validating law which removed the cause for               A
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
                                                                               B
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             C
Occupants) Act, 1958 was challenged on the ground that Section 5(1)
contravened Article 14. Section 5(1) conferred power on the Estate
Officer to make an order of eviction against persons who were in
unauthorised occupation of public premises. During the pendency of the
appeal before this Court, the Public Premises (Eviction of Unauthorised        D
Occupants) Act, 1971 was enacted, which validated all actions taken
under the Act of 1958. The constitutional validity of the 1971 Act was
also challenged. Section 20 of the later Act provided:
        “Notwithstanding any judgment, decree or order of any court,
        anything done or any action taken (including rules or orders           E
        made, notices issued, evictions ordered or effected, damages
        assessed, rents or damages or costs recovered and proceedings
        initiated) or purported to have been done or taken under
        the Public Premises (Eviction of Unauthorised Occupants)
        Act, 1958 shall be deemed to be as valid and effective as
        if such thing or action was done or taken under the                    F
        corresponding provisions of this Act which, under Sub-
        section (3) of Section 1 shall be deemed to have come into
        force on the 16th day of September, 1958 ...” (Emphasis
        supplied)
The Court held that the legislature has the power to validate actions          G
under an earlier law by removing its infirmities. In that case, validation
was achieved by enacting the 1971 Act with retrospective effect from
1958 and legislating that actions taken under the earlier law will be deemed
to be as valid and effective as if they were taken under the 1971 Act.
The Court held:                                                                H
1038              SUPREME COURT REPORTS                           [2018] 8 S.C.R.


 A              “24. The 1958 Act has not been declared by this Court to be
                unconstitutional… The arguments on behalf of the appellants
                therefore proceeded on the footing that the 1958 Act will be
                presumed to be unconstitutional. It was therefore said that the
                1971 Act could not validate actions done under the 1958 Act.
                The answer is for the reasons indicated above that the Legislature
 B
                was competent to enact this legislation in 1958 and the Legislature
                by the 1971 Act has given the legislation full retrospective
                operation. The Legislature has power to validate actions under
                an earlier Act by removing the infirmities of the earlier Act. The
                1971 Act has achieved that object of validation.”
 C     The Court approved the Constitution Bench decision in West Ramnad:
                “16. The ruling of this Court in West Ramnad Electric Distribution
                Co. Ltd. case establishes competence of the legislature to make
                laws retrospective in operation for the purpose of validation of
                action done under an earlier Act which has been declared by a
 D              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
 E     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
       Pradesh550 (Jaora Sugar Mills), SKG Sugar Ltd. v State of Bihar551
 F     (“SKG Sugar”) and Krishna Chandra Gangopadhyaya v Union of
       India552 (“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
 G     was held to be incompetent to enact a taxing measure, a validating law
       was enacted by Parliament by making a substantive provision.


       550
             (1966) 1 SCR 523
       551
             (1974) 4 SCC 827
       552
 H           (1975) 2 SCC 302
  JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             1039
             [DR.[ASHOK   BHUSHAN, J.] J.]
                  D. Y. CHANDRACHUD,

      313. In Jaora Sugar Mills, a state law imposing cess was struck         A
down for want of legislative competence. Parliament enacted the
Sugarcane Cess (Validation) Act, 1961 to validate the imposition of cess
under the invalidated state law. Section 3(1) of the 1961 Act provided:
       “12…Notwithstanding any judgment, decree or order of any
       Court, all cesses imposed, assessed or collected or purporting to      B
       have been imposed, assessed or collected under any State Act
       before the commencement of this act shall be deemed to have
       been validly imposed, assessed or collected in accordance
       with law, as if the provisions of the State Acts and of all
       notifications, orders and rules issued or made thereunder, in so
       far as such provisions relate to the imposition, assessment and        C
       collection of such cess had been included in and formed part of
       this section and this section had been in force at all material
       times when such cess was imposed, assessed or collected;
       ….” (Emphasis supplied)
The Section was upheld. Speaking for the Constitution Bench, Chief            D
Justice Gajendragadkar held:
             “14... What Parliament has done by enacting the said
             section is not to validate the invalid State Statutes, but to
             make a law concerning the cess covered by the said
             Statutes and to provide that the said law shall come             E
             into operation retrospectively. There is a radical
             difference between the two positions. Where the legislature
             wants to validate an earlier Act which has been declared
             to be invalid for one reason or another, it proceeds to remove
             the infirmity from the said Act and validates its provisions     F
             which are free from any infirmity.” (Emphasis supplied)
The state law was held to be invalid for want of legislative competence.
Parliament, which was competent to enact a law on the subject, did so
with retrospective effect and validated actions which were taken under
the invalid state law.                                                        G
      314. In SKG Sugar, a state law - Bihar Sugar Factories Control
Act, 1937 - was declared unconstitutional. In 1969, during President’s
Rule in Bihar, Parliament enacted the Bihar Sugarcane (Regulation of
Supply and Purchase) Act, 1969. Section 66(1) of the Act provided:
                                                                              H
1040               SUPREME COURT REPORTS                         [2018] 8 S.C.R.


 A               “12…Notwithstanding any judgment, decree or order of any court,
                 all cesses and taxes imposed, assessed or collected or
                 purporting to have been imposed, assessed or collected under
                 any State law, before the commencement 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
 B
                 material times when such cess or tax was imposed, assessed
                 or collected and accordingly....”553 (Emphasis supplied)
       The Constitution Bench held:
                 “32… By virtue of the legal fiction introduced by the validating
 C               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.”554
              315. In Krishna Chandra, provisions of the Bihar Land Reforms
 D     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
 E               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 by
                 Parliament.
 F               (2) Notwithstanding any judgment, decree or order of any court,
                 all actions taken, things done, rules made, notifications issued
                 or purported to have been taken, done, made or issued and rents
                 or royalties realised under any such laws shall be deemed to
                 have been validly taken, done, made, issued or realised, as
                 the case may be, as if this section had been in force at all
 G
                 material times when such action was taken, things were
                 done, rules were, made, notifications were issued, or rents or
                 royalties were realised, and no suit or other proceedings shall be

       553
             Ibid, at page 831
       554
 H           Ibid, at page 835
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                          1041
                 [DR.[ASHOK
                      D. Y. CHANDRACHUD,
                              BHUSHAN, J.] J.]

          maintained or continued in any court for the refund of rents or      A
          royalties realised under any such laws.
          (3) For the removal of doubts, it is hereby declared that nothing
          in Sub-section (2) shall be construed as preventing any person
          from claiming refund of any rents or royalties paid by him in
          excess of the amount due from him under any such laws.”555           B
          (Emphasis supplied)
The central issue in the case was whether a statute and a rule earlier
declared to be unconstitutional or invalid, can be retroactively enacted
through fresh validating legislation by the competent Legislature. The
Court held that it could be.                                                   C
       316. Section 59 of the Aadhaar Act is different from the validating
provisions in JaoraSugar Mills, SKG Sugar and Krishna Chandra.
In those cases, state laws were invalid for want of legislative competence.
Parliament, which undoubtedly possessed legislative competence, could
enact a fresh law with retrospective effect and protect actions taken          D
under the state law. The infirmity being that the earlier laws were void
for absence of competence in the legislature, the fresh laws cured the
defect of the absence of legislative competence.
       317. Parliament and the State Legislatures have plenary power
to legislate on subjects which fall within their legislative competence.       E
The power is plenary because the legislature can legislate with prospective
as well as with retrospective effect. Where a law suffers from a defect
or has been invalidated, it is open to the legislature to remove the defect.
While doing that, the legislature can validate administrative acts or
decisions made under the invalid law in the past. The true test of a
validation is that it must remove the defects in the earlier law. It is not    F
enough for the validating law to state that the grounds of invalidity 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             G
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
555
      Ibid, at page 306                                                        H
1042                SUPREME COURT REPORTS                         [2018] 8 S.C.R.


 A     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
 B
       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 biometric data. Hence,
       Section 59 would not provide legal authority for the collection of biometrics
 C     between 2009 and 2016. Second, it was through the Aadhaar Act, that
       safeguards were sought to be introduced for ensuring informed consent,
       confidentiality of information collected, restrictions on the use of the
       data and through a regime of penalties and offences for violation. Section
       59 does not cure the absence of these safeguards between 2009 and
 D     2016. Section 59 fails to meet the test of a validating law for the simple
       reason that the absence of safeguards and of a regulatory framework is
       not cured merely by validating what was done under the notifications of
       2009 and 2016. There can be no dispute about the principle that the
       legislature is entitled to cure the violation of a fundamental right. But in
       order to do so, it is necessary to cure the basis or the foundation on
 E     which there was a violation of the fundamental right. The deficiency
       must be demonstrated to be cured by the validating law. Section 59
       evidently fails to do so. It fails to remedy the deficiencies in regard to the
       conditions under which the collection of biometric data took place before
       the enforcement of the Aadhaar Act in 2016.
 F     The Respondents submitted that Section 59 creates a deemed fiction
       and cited a few judgments in support of this contention. In Bishambhar
       Nath Kohli v State of Uttar Pradesh556, an Ordinance repealed another
       Ordinance. Section 58(3) of the repealing Ordinance stated:
                  “6…The repeal by this Act of the Administration of Evacuee
 G                Property Ordinance, 1949 or the Hyderabad Administration of
                  Evacuee Property Regulation or of any corresponding law shall
                  not affect the previous operation of that Ordinance, Regulation
                  or corresponding law, and subject thereto, anything done or any
       556
             (1966) 2 SCR 158
 H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                          1043
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

          action taken in the exercise of any power conferred by or            A
          under that Ordinance, Regulation or corresponding law,
          shall be deemed to have been done or taken in the exercise
          of the powers conferred by or under this Act as if this Act
          were in force on the day on which such thing was done or
          action was taken.”       (Emphasis supplied)
                                                                               B
       319. A Constitution Bench of this Court held that by virtue of
Section 58, all things done and actions taken under the repealed ordinance
are deemed to be done or taken in exercise of the powers conferred by
the repealing Act, as if that Act were in force 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          C
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            D
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 Nadu557, was dealing with a batch of civil
appeals filed against a final order of the Cauvery Water Disputes Tribunal     E
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          F
          Supreme Court.”558
Relying on Section 6(2), it was contended that the jurisdiction of this
Court is ousted as it cannot sit in appeal on its own decree. The Court
did not accept the submission and held:
          “74. The language employed in Section 6(2) suggests that the         G
          decision of the tribunal shall have the same force as the order or
          decree of this Court. There is a distinction between having the

557
      (2017) 3 SCC 362
558
      Ibid, at page 405
                                                                               H
1044               SUPREME COURT REPORTS                          [2018] 8 S.C.R.


 A               same force as an order or decree of this Court and passing of a
                 decree by this Court after due adjudication. The Parliament has
                 intentionally used the words from which it can be construed that
                 a legal fiction is meant to serve the purpose for which the fiction
                 has been created and not intended to travel beyond it. The
                 purpose is to have the binding effect of the tribunal’s award and
 B
                 the effectiveness of enforceability. Thus, it has to be narrowly
                 construed regard being had to the purpose it is meant to serve…559
                 81…it is clear as crystal that the Parliament did not intend to
                 create any kind of embargo on the jurisdiction of this Court. The
                 said provision was inserted to give the binding effect to the award
 C               passed by the tribunal. The fiction has been created for that
                 limited purpose.”560 (Emphasis supplied)
       The judgment makes it clear that a deeming fiction cannot travel beyond
       what was originally intended. As stated earlier, the action of collecting
       and authentication of biometrics or the requirement of informed consent
 D     finds no mention in the 2009 notification. Therefore, Section 59 cannot
       be held to create a deeming fiction that all the actions taken under the
       notifications issued were done under the Act and not under the aforesaid
       notifications.
              321. This Court must also deal with the Respondents’ submission
 E     that Parliament is not debarred from enacting a validation law even though
       the Court did not have the opportunity to rule on the validity of the
       notifications which are purported by Section 59 to have been validated.
       The Respondents have placed reliance on a two judge Bench decision in
       Amarendra Kumar Mohapatra v State of Orissa.561 This case
 F     involved a challenge to the constitutional validity of the Orissa Service
       of Engineers (Validation of Appointment) Act, 2002 enacted to regularise
       ad hoc appointments of employees. The issue before the Court was
       whether the Orissa Act was in effect a validation statute to validate any
       illegality or defect in a pre-existing Act or rule in existence. The Court
       held that since the Orissa Act merely regularised the appointment of
 G     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 non-existent act, but
       559
             Ibid, at page 406
       560
             Ibid, at page 408
 H     561
             (2014) 4 SCC 583
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                          1045
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

simply appointed the ad hoc Assistant Engineers as substantive                 A
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         B
        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.”562
The Court further held that:
          “25. … when the validity of any such Validation Act is called        C
          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 legislation (ii) whether
          the legislature was competent to validate the act, action,
          proceedings or rule declared invalid in the previous                 D
          judgments and (iii) whether such validation is consistent
          with the rights guaranteed by Part III of the Constitution.
          It is only when the answer to all these three questions is in the
          affirmative that the Validation Act can be held to be effective
          and the consequences flowing from the adverse pronouncement          E
          of the Court held to have been neutralised.” (Emphasis
          supplied)
       322. The two judge Bench relied upon the Constitution Bench
decision of this Court in Shri Prithvi Cotton Mills Ltd v Broach
Borough Municipality563 to formulate the following pre-requisites of a
piece of legislation that purports to validate any act, rule, action or        F
proceedings:
        “(a) The legislature enacting the Validation Act should be
        competent to enact the law and;
        (b) the cause for ineffectiveness or invalidity of the Act or the
        proceedings needs to be removed.”                                      G
These judgments suggest that while there can be no disagreement with
the proposition that a legislature has the power, within its competence, to

562
      Ibid, at page 604
563
      (1969) 2 SCC 283                                                         H
1046              SUPREME COURT REPORTS                                  [2018] 8 S.C.R.


 A     make a law to validate a defective law, the validity of such a law would
       depend upon whether it removes the cause of ineffectiveness or invalidity
       of the previous
       Act or proceedings.Parliament has the power to enact a law of validation
       to cure an illegality or defect in the pre-existing law, with or without a
 B     judicial determination. But that law should cure the cause of infirmity or
       invalidity. Section 59 fails to cure the cause of invalidity prior to the
       enactment of the Aadhaar Act.
       K Rule of law and violation of interim orders
              323. The rule of law is the cornerstone of modern democratic
 C     societies and protects the foundational values of a democracy. When
       the rule of law is interpreted as a principle of constitutionalism, it assumes
       a division of governmental powers or functions that inhibits the exercise
       of arbitrary State power. It also assumes the generality of law: the
       individual’s protection from arbitrary power consists in the fact that her
       personal dealings with the State are regulated by general rules, binding
 D     on private citizens and public officials alike.564
       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
 E     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. 565
              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,
 F
       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
       Punjab566 is widely regarded as defining the core of its content:
 G     564
           T. R. S. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law (2001),
           available at http://www.oxfordscholarship.com/view/10.1093/acprof:oso/
           9780199267880.001.0001/acprof-9780199267880- chapter-2
       565
           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
       566
           (1955) 2 SCR 225
 H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                           1047
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

         “12…The Indian Constitution has not indeed recognised the              A
         doctrine of separation of powers in its absolute rigidity but the
         functions of the different parts or branches of the Government
         have been sufficiently differentiated and consequently it can very
         well be said that our Constitution does not contemplate
         assumption, by one organ or part of the State, of functions that
                                                                                B
         essentially belong to another...”
Separation of powers envisages a system of checks and balances, which
ensures governance by law and not by the caprice of those to whom
governance is entrusted for the time being. By curbing excesses of
power, it has a direct link with the preservation of institutional rectitude
and individual liberty. In S G Jaisinghani v Union of India567, this Court      C
held that:
         “14. In this context it is important to emphasize that the absence
         of arbitrary power is the first essential of the rule of law upon
         which our whole constitutional system is based. In a system
         governed by rule of law, discretion, when conferred upon               D
         executive authorities, must be confined within clearly defined
         limits. The rule of law from this point of view means that decisions
         should be made by the application of known principles and rules
         and, in general, such decisions should be predictable and the
         citizen should know where he is. If a decision is taken without        E
         any principle or without any rule it is unpredictable and such a
         decision is the antithesis of a decision taken in accordance with
         the Rule of law…”
The separation of powers between the legislature, the executive and the
judiciary has been declared to be part of the basic structure of the            F
Constitution.In Kesavananda Bharati v State of Kerala568, Chief
Justice Sikri held that:
         “292…The basic structure may be said to consist of the following
         features:
         (1) Supremacy of the Constitution;                                     G
         (2) Republican and Democratic form of Government;
         (3) Secular character of the Constitution;

567
      (1967) 2 SCR 703
568
      (1973) 4 SCC 225                                                          H
1048               SUPREME COURT REPORTS                                [2018] 8 S.C.R.


 A               (4) Separation of powers between the legislature, the
                 executive and the judiciary;
                 (5) Federal character of the Constitution.”569
                 (Emphasis supplied)
 B     Justice HR Khanna held that the rule of law meant “supremacy of the
       Constitution and the laws as opposed to arbitrariness”570. The same view
       is expressed in subsequent decisions of this Court.571 In SmtIndira
       Nehru Gandhi v Shri Raj Narain572, Chief Justice AN Ray held the
       rule of law to be the basis of democracy.

 C     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 Kerala573, as follows:
                 “98. Indian Constitution, unlike the Constitution of United States
                 of America and Australia, does not have express provision of
 D               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,
 E               not expressly engrafted in the Constitution, its sweep, operation
                 and visibility are apparent from the Constitution. Indian
                 Constitution has made demarcation without drawing formal lines
                 between the three organs—legislature, executive and judiciary.”
       This Court has consistently held judicial review to be an essential
 F     component of the separation of powers as well as of the rule of law.
       Judicial review involves determination not only of the constitutionality of
       law but also of the validity of administrative action. It protects the essence
       of the rule of law by ensuring that every discretionary power vested in
       the executive is exercised in a just, reasonable and fair manner.
 G     569
             Ibid, at page 366
       570
             Ibid, at para 1529
       571
             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.
       572
             1975 Supp SCC 1
       573
 H           (2014)12 SCC 696
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                          1049
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

       325. In a reference574 under Article 143 of the Constitution, a         A
seven judge Bench held that irrespective of “whether or not there is
distinct and rigid separation of powers under the Indian Constitution”,
the judicature has been entrusted the task of construing the provisions of
the Constitution and of safeguarding the fundamental rights of citizens.
It was held:
                                                                               B
          “41…When a statute is challenged on the ground that it has
          been passed by Legislature without authority, or has otherwise
          unconstitutionally trespassed on fundamental rights, it is for the
          courts to determine the dispute and decide whether the law passed
          by the legislature is valid or not… If the validity of any law is
          challenged before the courts, it is never suggested that the         C
          material question as to whether legislative authority has been
          exceeded or fundamental rights have been contravened, can be
          decided by the legislatures themselves. Adjudication of such a
          dispute is entrusted solely and exclusively to the Judicature of
          this country…”                                                       D
In his celebrated dissent in Additional District Magistrate, Jabalpur
v Shivakant Shukla575, Justice HR Khanna, while referring to the rule
of law as the “antithesis of arbitrariness”, held:
          “527…Rule of law is now the accepted norm of all civilised
          societies... [E]verywhere it is identified with the liberty of the   E
          individual. It seeks to maintain a balance between the opposing
          notions of individual liberty and public order. In every State the
          problem arises of reconciling human rights with the requirements
          of public interest. Such harmonising can only be attained by the
          existence of independent courts which can hold the balance           F
          between citizen and State and compel Governments to conform
          to the law.”576
       326. Judicial review has been held to be one of the basic features
of the Constitution. A seven judge Bench of this Court, in L Chandra
Kumar v Union of India577, declared:                                           G

574
      (1965) 1 SCR 413
575
      (1976) 2 SCC 521
576
      Ibid, at page 748
577
      (1997) 3 SCC 261
                                                                               H
1050               SUPREME COURT REPORTS                          [2018] 8 S.C.R.


 A               “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.” 578
 B     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 Nadu579 held thus:
                 “129… Equality, rule of law, judicial review and separation of
                 powers form parts of the basic structure of the Constitution.
 C               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
 D               placed on the judiciary.”580
       Judicial review, by protecting individual rights, promotes the foundational
       values of the Constitution and the rule of law. This Court took note of
       this aspect in Puttaswamy:

 E               “295. Above all, it must be recognized that judicial review is a
                 powerful guarantee against legislative encroachments on life and
                 personal liberty. To cede this right would dilute the importance
                 of the protection granted to life and personal liberty by the
                 Constitution. Hence, while judicial review in constitutional
                 challenges to the validity of legislation is exercised with a
 F               conscious regard for the presumption of constitutionality and for
                 the separation of powers between the legislative, executive and
                 judicial institutions, the constitutional power which is vested in
                 the Court must be retained as a vibrant means of protecting the
                 lives and freedoms of individuals.”581
 G            327. Constitutional adjudication facilitates answers to the silences
       of the Constitution. The task of interpretation is to foster the spirit of the
       Constitution as much as its text. This role has exclusively been conferred
       578
             Ibid, at page 301
       579
             (2007) 2 SCC 1
       580
             Ibid, at page 58
 H     581
             Ibid, at page 497
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             1051
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

on the Supreme Court and the High Courts to ensure that its values are            A
not diminished by the legislature or the executive. Our Court has been
conscious of this role. In Krishna Kumar Singh v State of Bihar582,
while dealing with the question whether an ordinance (promulgated by
the Governor) which has a limited life can bring about consequences for
the future (in terms of the creation of rights, privileges, liabilities and
                                                                                  B
obligations) which will enure beyond its life, a seven judge Bench held
that:
         “91…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       C
         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 is through the          D
         legislature...”583 (Emphasis supplied)
The Court held that the ordinance making power must be carefully
structured to ensure that it remains what the framers of our Constitution
intended it to be: an exceptional power to meet a constitutional necessity.
       328. In a constitutional democracy, the power of government, is            E
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.584 A constitutional democracy determines the
degree and manner of distribution of political authority among the major          F
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          G
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
582
      (2017) 3 SCC 1
583
      Ibid, at page 76
584
      Almon Leroy Way, Jr., Constitutional Democracy & Other Political Regimes,
      available at http://www.proconservative.net/CUNAPolSci201PartTWOA.shtml     H
1052               SUPREME COURT REPORTS                                     [2018] 8 S.C.R.


 A     ensure that every institution acts within its limits. Judicial review promotes
       transparency, consistency and accountability in the administration of law,
       and notions of equity, justice and fairness585.Constitutionalism thus puts
       a legal limitation on the government. It envisages the existence of limited
       government. Discretion conferred upon an institution of governance, be
       it the legislature or the executive, is confined within clearly defined limits
 B
       of the Constitution. Not only are the organs of the State required to
       operate within their defined legitimate spheres; they are bound to exercise
       their powers within these spheres without violating the Constitution.586
       Judicial review is a sanction and agency to enforce the limitations imposed
       by the Constitution upon the authority of the organs of the State.
 C     This formulation of the limited power of political authority has been
       recognized in several judgments of this Court. In State of M P v Thakur
       Bharat Singh587, a Constitution Bench held:
               “5…Our federal structure is founded on certain fundamental
               principles: (1) the sovereignty of the people with limited
 D             Government authority i.e. the Government must be conducted
               in accordance with the will of the majority of the people. The
               people govern themselves through their representatives, whereas
               the official agencies of the executive Government possess only
               such powers as have been conferred upon them by the people;
               (2) There is a distribution of powers between the three
 E
               organs of the State — legislative, executive and judicial
               — each organ having some check direct or indirect on the
               other; and (3) the rule of law which includes judicial review
               of arbitrary executive action…” (Emphasis supplied)
              329. In a decision rendered by a Constitution Bench, in S P
 F     Sampath Kumar v Union of India588, Chief Justice P.N. Bhagwati, in
       his concurring opinion, held:
       585
             In Sheela Barse v. State of Maharashtra ((1983) 2 SCC 96), the Supreme Court
             insisted on fairness to women in police lock-up and also drafted a code of guidelines
             for the protection of prisoners in police custody, especially female prisoners. In
 G           Veena Sethi v. State of Bihar (AIR 1982 S.C. 1470), the Supreme Court extended
             the reach of rule of law to the poor who constitute the bulk of India by ruling that
             rule of law does not merely for those who have the means to fight for their rights
             and expanded the locus standi principle to help the poor
       586
             Durga Das Basu, Limited Government and Judicial Review, LexisNexis, (2016) at
             pages 123-124
       587
             (1967) 2 SCR 454
       588
 H           (1987) 1 SCC 124
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              1053
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

          “3…It is a fundamental principle of our constitutional scheme            A
          that every organ of the State, every authority under the
          Constitution, derives its power from the Constitution and has to
          act within the limits of such power. It is a limited government
          which we have under the Constitution and both the executive
          and the legislature have to act within the limits of the power
                                                                                   B
          conferred upon them under the Constitution… The judiciary is
          constituted the ultimate interpreter of the Constitution
          and to it is assigned the delicate task of 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                     C
          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
                                                                                   D
          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…”589 (Emphasis supplied)
     330. In I R Coelho v State of Tamil Nadu590, a nine judge
Bench held that control over government power ensures that the                     E
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                 F
          fundamental rights. A modern democracy is based on the twin
          principles of majority rule and the need to protect fundamental
          rights. According to Lord Steyn, it is job of the judiciary to balance
          the principles ensuring that the Government on the basis of number
          does not override fundamental rights.”                                   G
The rule of law is an implied limitation on the authority of any institution
in a constitutional democracy.591
589
      Ibid, at pages 128-129
590
      (2007) 2 SCC 1
591
      K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1               H
1054               SUPREME COURT REPORTS                                [2018] 8 S.C.R.


 A            331. Interim orders of courts are an integral element of judicial
       review. Interim directions issued on the basis of the prima facie findings
       in a case are temporary arrangements till the matter is finally decided.
       Interim orders ensure that the cause which is being agitated does not
       become infructuous before the final hearing.592 The power of judicial
       review is not only about the writs issued by superior courts or the striking
 B
       down of governmental action. Entrustment of judicial review is
       accompanied by a duty to ensure that judicial orders are complied with.
       Unless orders are enforced, citizens will lose faith in the efficacy of
       judicial review and in the legal system.
       It is in the background of the above constitutional position that this Court
 C     must deal with the contention that the interim orders passed by this Court,
       during the adjudication of the present dispute were not observed. This
       Court has consistently insisted, through its interim orders, on a restraint
       on the mandatory use of Aadhaar. It has been submitted that the interim
       orders have been violated and several contempt petitions are pending593
 D     before this Court.
             332. Prior to the enactment of the Aadhaar Act, the scheme was
       challenged before this Court. By its interim order dated 23 September
       2013594, a two judge Bench directed:
                 “All the matters require to be heard finally. List all matters for
 E               final hearing after the Constitution Bench is over.
                 In the meanwhile, no person should suffer for not getting
                 the Aadhaar card in spite 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
 F               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:
 G
       592
             State of Assam v. Barak Upatyaka DU Karmachari Sanstha, (2009) 5 SCC 694
       593
             Contempt Petition (Civil) No. 144/2014 in WP (C) No. 494/2012; Contempt
             Petition (Civil) No. 674/2014 in WP (C) No. 829/2013; Contempt Petition (Civil)
             No 444/2016 in WP (C) No. 494/2012
       594
             The interim order was in WP (Civil No. 494 of 2012)
 H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                          1055
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

           “After hearing the matter at length, we are of the view that all    A
          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.”                         B
While considering another petition, Unique Identification Authority
of India v Central Bureau of Investigation595, 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         C
          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 require the Aadhaar number in order to meet             D
          the requirement of the interim order passed by this Court
          forthwith… Tag and list the matter with main matter i.e.
          WP(C) No.494/2012.”
On 16 March 2015, while considering WP (Civil) 494 of 2012, this Court
noted a violation of its earlier order dated 23 September 2013 and directed    E
thus:
          “The matters require considerable time for hearing… In the
          meanwhile, it is brought to our notice that in certain
          quarters, Aadhaar identification is being insisted upon by
          the various authorities. We do not propose to go into the            F
          specific instances. Since Union of India is represented by
          learned Solicitor General and all the States are represented
          through their respective counsel, we expect that both the
          Union of India and States and all their functionaries should
          adhere to the Order passed by this Court on 23 r d
                                                                               G
          September, 2013.”
By an order dated 11 August 2015, a three judge Bench referred the
issue as to whether privacy is a fundamental right to a bench of a larger
strength of judges. The following interim directions were issued:
595
      SLP (Crl.) No. 2524/2015                                                 H
1056            SUPREME COURT REPORTS                           [2018] 8 S.C.R.


 A            “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 UIDAI
              proceed in the following manner:-
              1. The Union of India shall give wide publicity in the electronic
 B            and print media including radio and television networks that it is
              not mandatory for a citizen to obtain an Aadhaar card;
              2. The production of an Aadhaar card will not be condition for
              obtaining any benefits otherwise due to a citizen;
              3. The Unique Identification Number or the Aadhaar card will
 C            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;
 D            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.”
 E     On 15 October 2015, a Constitution Bench of this Court partially modified
       the order dated 11 August 2015, thus:
              “3…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
 F            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
 G
              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.
 H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            1057
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

         5. We will also make it clear that the Aadhaar card Scheme is           A
         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 India596, to a letter written to
the Chief Secretaries/Administrators of all State Governments/Union              B
territory Administrations by the Under Secretary to the Government of
India, by which the requirement of the submission of Aadhaar for claiming
benefits under a scheme was made mandatory. By an order dated 14
September 2016, a two judge Bench directed as follows:
          “…we stay the operation and implementation of letters dated
          14.07.2006 (i.e. Annexure P-5, P-6 and P-7) for Pre-Matric             C
          Scholarship Scheme, Post-Matric Scholarship Scheme and Merit-
          cum-Means Scholarship Scheme to the extent they have made
          submission of Aadhaar mandatory and direct the Ministry of
          Electronics and Information Technology, Government of India
          i.e. Respondent No.2 to remove Aadhaar number as a mandatory           D
          condition for student Registration form at the National Scholarship
          Portal of Ministry of Electronics and Information Technology,
          Government of India at the website http://scholarships.gov.in/
          newStudentRegFrm and stay the implementation of clause (c)
          of the ‘Important Instructions’ of the advertisement dated
          20.08.2016 for the Pre-Matric Scholarship Scheme, Post-Matric          E
          Scholarship Scheme and Merit-cum-Means Scholarship Scheme,
          during the pendency of this writ petition.”
It has been submitted that the notifications and circulars, which make
the application of Aadhaar mandatory, are contrary to the interim orders
passed by this Court. It has been contended that the Respondents have            F
flouted the most elementary norms of good governance and have
disrespected judicial orders. This contention requires serious
consideration.
       333. The legislature cannot simply declare that the judgment of a
court is invalid or that it stands nullified. In Kalpana Mehta, a Constitution   G
Bench of this Court held:
       “255…If the legislature were permitted to do so, it would travel
       beyond the boundaries of constitutional entrustment. While the
       separation of powers prevents the legislature from issuing a mere
596
      WP (Civil) No. 686/2016                                                    H
1058               SUPREME COURT REPORTS                          [2018] 8 S.C.R.


 A            declaration that a judgment is erroneous or invalid, the law-making
              body is entitled to enact a law which remedies the defects which
              have been pointed out by the court. Enactment of a law which
              takes away the basis of the judgment (as opposed to merely
              invalidating it) is permissible and does not constitute a violation of
              the separation doctrine. That indeed is the basis on which validating
 B
              legislation is permitted.”597
       Where a final judgment or order of this Court is sought to be undone by
       an Act of Parliament, it is imperative 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 India598:
 C            “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
 D            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
 E            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
 F            has been declared to be invalid by a court cannot be made
              valid by a Validating Act by merely saying so unless the
              defect which has been pointed out by the court is removed
              with retrospective effect. The validating legislation must
              remove the cause of invalidity. Till such defect or the lack
              of authority pointed out by the court under a statute is
 G            removed by the subsequent enactment with retrospective
              effect, the binding nature of the judgment of the court cannot
              be ignored.”599 (Emphasis supplied)
       597
             Ibid, at page 126
       598
             (1994) 6 SCC 77
       599
 H           Ibid at pages 83-84
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                               1059
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

When the Aadhaar Act was notified on 25 March 2016, the interim                  A
directions issued by this court were in operation. Was it then open to
government to launch upon a virtual spree of administrative notifications
making Aadhaar a mandatory requirement of virtually every aspect of
human existence from birth until death?
The position which the Union government has adopted before this court            B
is simply this: interim directions were issued by this court when the
Aadhaar project was governed by executive instructions. Once a law
was enacted by Parliament, a statutory authorisation was brought into
existence to enable government to issue administrative instructions.
Hence, compliance with the interim orders stands obviated upon the
enactment of the law.                                                            C

        334. This defence of government can be scrutinized at two levels
– the first as a matter of statutory interpretation and the second, on a
broader foundation which engages the judicial power of this court. As a
matter of statutory interpretation, the Aadhaar Act did not, as it could
not have, merely nullified the interim orders of this court. Section 59 has      D
no provision which gives it overriding effect notwithstanding any judgment,
decree or order of a court. The interim orders do not stand superseded.
Apart from approaching the issue purely as a matter of statutory
interpretation, there are broader concerns which arise from the manner
in which the authorities proceeded, oblivious to the interim directions.         E
Interim directions were issued by this court in a situation where a
constitutional challenge was addressed in a batch of petitions on the
ground that the Aadhaar project was offensive to fundamental rights,
including the right to privacy. So significant was the nature of the challenge
that it was referred initially to a Constitution Bench and thereafter, to a
bench of nine-judges of this Court for resolving the question as to whether      F
privacy is a protected 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.          G
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
                                                                                 H
1060             SUPREME COURT REPORTS                           [2018] 8 S.C.R.


 A     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
 B
       fact that the issue of constitutionality was indeed live. That being the
       position, the issuance of a spate of administrative notifications is in
       defiance of the interim orders passed by this Court. Judicial orders, be
       they interim or final, cannot simply be wished away. If governments or
       citizens were allowed to ignore judicially enforceable directions, that
 C     would negate the basis of the rule of law. Both propriety and
       constitutional duty required Union government to move this Court after
       the enactment of the Aadhaar Act for variation of the interim orders.
       Such an application would have required this Court to weigh on the one
       hand the subsequent development of the law being passed (something
       which would be relied upon by government) with the constitutional
 D
       concerns over the entire biometric project. It is not as if that the mere
       enactment of the law put an end to the constitutional challenge. The
       existence of law (post 2016) is only one aspect to be considered in
       deciding the interim arrangement which would hold the field when the
       constitutional challenge was pending adjudication before this Court.
 E     Institutions of governance are bound by a sense of constitutional morality
       which requires them to abide by judicial orders. What seems to emerge
       from the course of action which has been followed in the present case
       by government is a perception that judicial directions can be ignored on
       a supposed construction of the statute. Besides the fact that this
       construction is erroneous in law, it is above all, the fundamental duty of
 F
       this Court to ensure that its orders are not treated with disdain. If we
       were not to enforce a punctilious compliance with our own directions by
       government, that would ring a death – knell of the institutional position of
       the Supreme Court. If governments were free to ignore judicial directions
       at will, could a different yardstick be applied to citizens? The obligation
 G     to comply with judicial orders is universal to our polity and admits of no
       exception. Confronted with a brazen disregard of our interim orders, I
       believe that we have no course open except to stand firm.
              335. The power of judicial review conferred on an independent
       judiciary requires that other organs of the State respect the authority of
 H
      JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                           1061
                 [DR.[ASHOK   BHUSHAN, J.] J.]
                      D. Y. CHANDRACHUD,

Courts. This Court in P Sambamurthy v State of Andhra Pradesh600,               A
while highlighting the importance of judicial review in the rule of law
regime, held thus:
          “4… it is a basic principle of the rule of law that 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        B
          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         C
          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           D
          meaning, because then it would be open to the State
          Government to defy the law and yet get away with it.”601
          (Emphasis supplied)
       336. A Bench of two judges in Re: Arundhati Roy602 held that
for the courts to protect the rule of law, it is necessary that the dignity     E
and authority of the courts have to be respected and protected. It was
held:
          “‘Rule of Law’ is the basic rule of governance of any civilised
          democratic policy. Our Constitutional scheme is based upon the
          concept of Rule of Law which we have adopted and given to             F
          ourselves. Everyone, whether individually or collectively is
          unquestionably under the supremacy of law. Whoever the person
          may be, however high he or she is, no-one is above the law
          notwithstanding how powerful and how rich he or she may be.
          For achieving the establishment of the rule of law, the
          Constitution has assigned the special task to the judiciary           G
          in the country. It is only through the courts that the rule of

600
      (1987) 1 SCC 362
601
      Ibid, at page 369
602
      (2002) 3 SCC 343
                                                                                H
1062               SUPREME COURT REPORTS                                [2018] 8 S.C.R.


 A               law unfolds its contents and establishes its concept. For
                 the judiciary to perform its duties and functions effectively
                 and true to the spirit with which it is sacredly entrusted,
                 the dignity and authority of the courts have to be respected
                 and protected at all costs.”603 (Emphasis supplied)
 B     The accountability of power, as a component of the rule of law, requires
       that the power vested in any organ of the State, and its agents, can only
       be used for promotion of constitutional values and vision.604 Governmental
       authority may only be exercised in accordance with written laws which
       are adopted though an established procedure. No action of the legislature
       or the executive can undermine the authority of the courts, except
 C     according to established principles. Disrespect of court orders results in
       impairment of the dignity of the courts.
             337. Constitutional morality requires a government not to act in a
       manner which would become violative of the rule of law.605 Constitutional
       morality requires that the orders of this Court be complied with, faithfully.
 D     This Court is the ultimate custodian of the Constitution. The limits set by
       the Constitution are enforced by this Court. Constitutional morality
       requires that the faith of the citizens in the constitutional courts of the
       country be maintained. The importance of the existence of courts in the
       eyes of citizens has been highlighted in Harper Lee’s classic “To Kill a
 E     Mockingbird”:
                 “But there is one way in this country in which all men are
                 created equal—there is one human institution that makes a
                 pauper the equal of a Rockefeller, the stupid man the equal of an
                 Einstein, and the ignorant man the equal of any college president.
 F               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)
 G
       Many citizens, although aggrieved, are not in a condition to reach the
       highest Court. The poorest and socially neglected lack resources and

       603
             Ibid, at page 346
       604
             Nandini Sundar v State of Chhattisgarh, (2011) 7 SCC 547
       605
 H           Manoj Narula v Union of India, (2014) 9 SCC 1
   JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             1063
              [DR.[ASHOK   BHUSHAN, J.] J.]
                   D. Y. CHANDRACHUD,

awareness to reach this Court. Their grievances remain unaddressed.            A
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
                                                                               B
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 executive. The brazen manner in which notifications have
been issued making Aadhaar mandatory, despite the interim order of this
Court is a matter of serious concern. Deference to the institutional           C
authority of the Supreme Court is integral to the values which the
Constitution adopts. The postulate of a limited government is enforced
by the role of the Supreme Court in protecting the liberties of citizens
and holding government accountable for its transgressions. The authority
of this Court is crucial to maintaining the fine balances of power on
                                                                               D
which democracy thrives and survives. The orders of the Court are not
recommendatory – they are binding directions of a constitutional
adjudicator. Dilution of the institutional prestige of this Court can only
be at the cost of endangering the freedom of over a billion citizens which
judicial review seeks to safeguard.
       338. Courts – as it is often said- have neither the power of the        E
purse nor the sword. Our authority lies in constitutional legitimacy as
much as in public confidence. Combined together they impart moral and
institutional authority to the Court. That sense of legitimacy and duty
have required me to assert once again the norms of a written Constitution
and the rule of law. This judgment has taken a much wider postulation.         F
Having held the Aadhaar Act prior to its passage not to be a Money Bill,
I have delved into the merits of the constitutional challenge for two
reasons:
        i.    Merits have been argued in considerable detail both by
              petitioners and the Union of India; and                          G
        ii.   As a logical consequence of the view that the Aadhaar
              legislation is not a Money Bill, it would be open to the
              government to reintroduce fresh legislation. The principles
              governing a law regulating the right to data protection and
              informational privacy have hence been delineated.                H
1064            SUPREME COURT REPORTS                            [2018] 8 S.C.R.


 A     L Conclusion
              339. The present dispute has required this Court to analyze the
       provisions of the Aadhaar Act and Regulations, along with the framework
       as it existed prior to the enactment of the Act, through the prism of the
       Constitution and the precedents of this Court. My conclusions are outlined
 B     below:
         (1) In order to deal with the challenge that the Aadhaar Act should
             not have been passed as a Money Bill, this Court was required
             to adjudicate whether the decision of the Speaker of the Lok
             Sabha to certify a Bill as a Money Bill, can be subject to judicial
 C           review. 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
 D           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
 E                 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
 F                 “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 illegality or a constitutional violation.
 G                 These judgments make it clear that the decision of the
                   Speaker is subject to judicial review, if it suffers from
                   illegality or from a violation of constitutional provisions.
               (c) Article 255 has no relation with the decision of the Speaker
                   on whether a Bill is a Money Bill. The three Judge Bench
 H
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                              1065
           [DR.[ASHOK   BHUSHAN, J.] J.]
                D. Y. CHANDRACHUD,

           decision in Mohd Saeed Siddiqui erroneously interpreted           A
           the judgment in Mangalore Beedi to apply Articles 212
           (or Article 122) and 255 to refrain from questioning the
           conduct of the Speaker (under Article 199 or 110). The
           two judge Bench decision in Yogendra Kumar followed
           Mohd Saeed Siddiqui. The correct position of law is that
                                                                             B
           the decision of the Speaker under Articles 110(3) and 199(3)
           is not immune from judicial review. The decisions in Mohd
           Saeed Siddiqui and Yogendra Kumar are accordingly
           overruled.
     (d) The existence of and the role of the Rajya Sabha, as an
         institution of federal bicameralism in the Indian Parliament,       C
         constitutes a part of the basic structure of the Constitution.
         The decision of the Speaker of the Lok Sabha to certify a
         Bill as a Money Bill has a direct impact on the role of the
         Rajya Sabha, since the latter has a limited role in the passing
         of a Money Bill. A decision of the Speaker of the Lok               D
         Sabha to declare an ordinary Bill to be a Money Bill limits
         the role of the Rajya Sabha. The power of the Speaker
         cannot be exercised arbitrarily in violation of constitutional
         norms and values, as it damages the essence of federal
         bicameralism, which is a part of the basic structure of the
         Constitution. Judicial review of the Speaker’s decision, on         E
         whether a Bill is a Money Bill, is therefore necessary to
         protect the basic structure of the Constitution.
(2) To be certified a Money Bill, a Bill must contain “only provisions”
     dealing with every or any one of the matters set out in sub-
     clauses (a) to (g) of Article 110(1). A Bill, which has both            F
     provisions which fall within sub-clauses (a) to (g) of Article 110(1)
     and provisions which fall outside their scope, will not qualify to
     be a Money Bill. Thus, when a Bill which has been passed as a
     Money Bill has certain provisions which fall beyond the scope of
     sub-clauses (a) to (g) of Article 110(1), these provisions cannot       G
     be severed. If the bill was not a Money Bill, the role of the Rajya
     Sabha in its legislative passage could not have been denuded.
     The debasement of a constitutional institution cannot be
     countenanced by the Court. Democracy survives when
     constitutional institutions are vibrant.
                                                                             H
1066          SUPREME COURT REPORTS                          [2018] 8 S.C.R.


 A     (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
 B
           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
 C         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 individual
 D
           information, creation of a statutory authority to implement and
           supervise the process, protection of information collected during
           the process, disclosure of information in certain circumstances,
           creation of offences and penalties for disclosure or loss of
           information, and the use of the Aadhaar number for “any
 E         purpose”. All these provisions of the Aadhaar Act do not lie
           within the scope of sub-clauses (a) to (g) of Article 110(1). Hence,
           in the alternate, even if it is held that Section 7 bears a nexus to
           the expenditure incurred from the Consolidated Fund of India,
           the other provisions of the Act fail to fall within the domain of
           Article 110(1). Thus, the Aadhaar Act is declared unconstitutional
 F
           for failing to meet the necessary requirements to have been
           certified as a Money Bill under Article 110(1).
       (4) The argument that the Aadhaar Act is in pith and substance a
           Money Bill, with its main objective being the delivery of subsidies,
           benefits and services flowing out of the Consolidated Fund of
 G         India and that the other provisions are ancillary to the main
           purpose of the Act also holds no ground, since the doctrine of
           pith and substance is used to examine whether the legislature
           has the competence to enact a law with regard to any of the
           three Lists in the Seventh Schedule of the Constitution. The
 H         doctrine cannot be invoked to declare whether a Bill satisfies
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            1067
           [DR.[ASHOK   BHUSHAN, J.] J.]
                D. Y. CHANDRACHUD,

     the requirements set out in Article 110 of the Constitution to be     A
     certified a Money Bill. The argument of the Union of India misses
     the point that a Bill can be certified as a Money Bill “only” if it
     deals with all or any of the matters contained in clauses (a) to
     (g) of Article 110(1).
(5) Having held that the Aadhaar Act is unconstitutional for having        B
    been passed as a Money Bill this judgment has also analysed the
    merits of the other constitutional challenges to the legislation as
    well as to the framework of the project before the law was
    enacted.
(6) The architecture of the Aadhaar Act seeks to create a unique           C
    identity for residents on the basis of their demographic and
    biometric information. The Act sets up a process of identification
    by which the unique identity assigned to each individual is verified
    with the demographic and biometric information pertaining to
    that individual which is stored in a centralised repository of data.
    Identification of beneficiaries is integral and essential to the       D
    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       E
    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        F
    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               G
    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. At the time of collection, individuals must be
    informed about the collection procedure, the intended purpose          H
1068          SUPREME COURT REPORTS                          [2018] 8 S.C.R.


 A          of the collection, the reason why the particular data set is
            requested and who will have access to their data. Additionally,
            the retention period must be justified and individuals must be
            given the right to access, correct and delete their data at any
            point in time, a procedure familiar to an opt-out option.
 B     (8) Prior to the enactment of the Aadhaar Act, no mandatory
           obligation was imposed upon the Registrars or the enrolling
           agencies, to obtain informed consent from residents before
           recording their biometric data, to inform them how the biometric
           data would be stored and used and about the existence of adequate
           safeguards to secure the data. Moreover, prior to the enactment
 C         of the Act, while UIDAI had itself contemplated that an identity
           theft could occur at the time of enrollment for Aadhaar cards, it
           had no solution to the possible harms which could result after the
           identity theft of a person.
       (9) The Regulations framed subsequently under the Aadhaar Act
 D         also do not provide a robust mechanism on how informed consent
           is to be obtained from residents before collecting their biometric
           data. The Aadhaar Act and Regulations are bereft of the
           procedure through which an individual can access information
           related to his or her authentication record. The Aadhaar Act
 E         clearly has no defined options that should be made available to
           the Aadhaar number holders in case they do not wish to submit
           identity information during authentication, nor do the regulations
           specify the procedure to be followed in case the Aadhaar number
           holder does not provide consent for authentication.

 F     (10) Sections 29(1) and (2) of the Act create a distinction between
            two classes of information (core biometric information and identity
            information), which are integral to individual identity and require
            equal protection. Section 29(4) suffers from overbreadth as it
            gives wide discretionary power to UIDAI to publish, display or
            post core biometric information of an individual for purposes
 G          specified by the regulations.
       (11) Sections 2(g), (j), (k) and (t) suffer from overbreadth, as these
            can lead to an invasive collection of biological attributes. These
            provisions give discretionary power to UIDAI to define the scope
            of biometric and demographic information and empower it to
 H          expand on the nature of information already collected at the time
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             1069
           [DR.[ASHOK   BHUSHAN, J.] J.]
                D. Y. CHANDRACHUD,

     of enrollment, to the extent of also collecting any “such other        A
     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          B
     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         C
     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.                                     D
(13) The State is under a constitutional obligation to safeguard the
     dignity of its citizens. Biometric technology which is the core of
     the Aadhaar programme is probabilistic in nature, leading to
     authentication failures. These authentication failures have led to
     the denial of rights and legal entitlements. The Aadhaar project       E
     has failed to account for and remedy the flaws in its framework
     and design which has led to serious instances of exclusion of
     eligible beneficiaries as demonstrated by the official figures from
     Government records including the Economic Survey of India
     2016-17 and research studies. Dignity and the rights of individuals
     cannot be made to depend on algorithms or probabilities.               F
     Constitutional guarantees cannot be subject to the vicissitudes
     of technology. Denial of benefits arising out of any social security
     scheme which promotes socio-economic rights of citizens is
     violative of human dignity and impermissible under our
     constitutional scheme.                                                 G
(14) The violations of fundamental rights resulting from the Aadhaar
     scheme were tested on the touchstone of proportionality. The
     measures adopted by the respondents fail to satisfy the test of
     necessity and proportionality for the following reasons:
                                                                            H
1070    SUPREME COURT REPORTS                            [2018] 8 S.C.R.


 A     (a) Under the Aadhaar project, requesting entities can hold the
           identity information of individuals, for a temporary period.
           It was admitted by UIDAI that AUAs may store additional
           information according to their requirement to secure their
           system. ASAs have also been permitted to store logs of
           authentication transactions for a specific time period. It has
 B
           been admitted by UIDAI that it gets the AUA code, ASA
           code, unique device code and the registered device code
           used for authentication, and that UIDAI would know from
           which device the authentication took place and through
           which AUA/ASA. Under the Regulations, UIDAI further
 C         stores the authentication transaction data. This is in violation
           of widely recognized data minimisation principles which
           mandate that data collectors and processors delete personal
           data records when the purpose for which it has been
           collected is fulfilled. Moreover, using the meta-datarelated
           to the transaction, the location of the authentication can
 D
           easily be traced using the IP address, which impacts upon
           the privacy of the individual.
       (b) From the verification log, it is possible to locate the places
           of transactions by an individual in the past five years. It is
           also possible through the Aadhaar database to track the
 E         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
 F         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
 G         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
 H         provide to it any personal information related to any resident
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            1071
           [DR.[ASHOK   BHUSHAN, J.] J.]
                D. Y. CHANDRACHUD,

         of India. This is contrary to the basic requirement that an       A
         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 security and
         cannot be subjected to the mere terms and conditions of a
         normal contract.
                                                                           B
   (d) Before the enactment of the Aadhaar Act, MOUs signed
       between UIDAI and Registrars were not contracts within
       the purview of Article 299 of the Constitution, and therefore,
       do not cover the acts done by the private entities engaged
       by the Registrars for enrolment. Since there is no privity of
       contract between UIDAI and the Enrolling agencies, the              C
       activities of the private parties engaged in the process of
       enrolment before the enactment of the Aadhaar Act have
       no statutory or legal backing.
   (e) Under the Aadhaar architecture, UIDAI is the sole authority
       which carries out all administrative, adjudicatory,                 D
       investigative, and monitoring functions of the project. While
       the Act confers these functions on UIDAI, it does not place
       any institutional accountability upon UIDAI to protect the
       database of citizens’ personal information. UIDAI also takes
       no institutional responsibility for verifying whether the data      E
       entered and stored in the CIDR is correct and authentic.
       The task has been delegated to the enrolment agency or
       the Registrar. Verification of data being entered in the CIDR
       is a highly sensitive task for which the UIDAI ought to
       have taken responsibility. The Aadhaar Act is also silent on
       the liability of UIDAI and its personnel in case of their non-      F
       compliance of the provisions of the Act or the regulations.
   (f)   Section 47 of the Act violates citizens’ right to seek
         remedies. Under Section 47(1), a court can take cognizance
         of an offence punishable under the Act only on a complaint
         made by UIDAI or any officer or person authorised by it.          G
         Section 47 is arbitrary as it fails to provide a mechanism to
         individuals to seek efficacious remedies for violation of their
         right to privacy. Further, Section 23(2)(s) of the Act requires
         UIDAI to establish a grievance redressal mechanism.
         Making the authority which is administering a project, also       H
1072     SUPREME COURT REPORTS                            [2018] 8 S.C.R.


 A           responsible for providing a grievance redressal mechanism
             for grievances arising from the project severely
             compromises the independence of the grievance redressal
             body.
       (g) While the Act creates a regime of criminal offences and
 B         penalties, the absence of an independent regulatory
           framework renders the Act largely ineffective in dealing
           with data violations. The architecture of Aadhaar ought to
           have, but has failed to embody within the law the
           establishment of an independent monitoring authority (with
           a hierarchy of regulators), along with the broad principles
 C         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
 D         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
 E         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
 F           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 making of the electorate in choosing
             candidates for electoral offices. This is contrary to privacy
             protection norms. Data cannot be used for any purpose
 G           other than those that have been approved. While developing
             an identification system of the magnitude of Aadhaar,
             security concerns relating to the data of 1.2 billion citizens
             ought to be addressed. These issues have not been dealt with
             by the Aadhaar Act. By failing to protect the constitutional
 H           rights of citizens, Section 57 violates Articles 14 and 21.
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                            1073
           [DR.[ASHOK   BHUSHAN, J.] J.]
                D. Y. CHANDRACHUD,

     (j) Section 57 is susceptible to be applied to permit commercial      A
         exploitation of the data of individuals or to affect their
         behavioural patterns. Section 57 cannot pass constitutional
         muster. Since it is manifestly arbitrary, it suffers from
         overbreadth and violates Article 14.
     (k) Section 7 suffers from overbreadth since the broad                B
         definitions of the expressions ‘services and ‘benefits’ enable
         the government to regulate almost every facet of its
         engagement with citizens under the Aadhaar platform. 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.         C
         The inclusion of services and benefits in Section 7 is a pre-
         cursor to the kind of function creep which is inconsistent
         with the right to informational self-determination. Section 7
         is therefore arbitrary and violative of Article 14 in relation
         to the inclusion of services and benefits as defined.             D
     (l) The legitimate aim of the State can be fulfilled by adopting
         less intrusive measures as opposed to the mandatory
         enforcement of the Aadhaar scheme as the sole repository
         of identification. The State has failed to demonstrate that a
         less intrusive measure other than biometric authentication
         would not subserve its purposes. That the state has been          E
         able to insist on an adherence to the Aadhaar scheme
         without exception is a result of the overbreadth of Section 7.
     (m) When Aadhaar is seeded into every database, it becomes a
         bridge across discreet data silos, which allows anyone with
         access to this information to re-construct a profile of an        F
         individual’s life. This is contrary to the right to privacy and
         poses severe threats due to potential surveillance.
     (n) One right cannot be taken away at the behest of the other.
         The State has failed to satisfy this Court that the targeted
         delivery of subsidies which animate the right to life entails     G
         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
                                                                           H
1074          SUPREME COURT REPORTS                           [2018] 8 S.C.R.


 A          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
 B
            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
 C          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 enforce the right to
            privacy. Section 59 therefore fails to meet the test of a validating
            law since the complete absence of a regulatory framework and
            safeguards cannot be cured merely by validating what was done
 D
            under the notifications of 2009 and 2016.
       (16) The decision in Puttaswamy recognised that revenue constitutes
            a legitimate state aim in the three-pronged test of proportionality.
            However, the existence of a legitimate aim is insufficient to uphold
            the validity of the law, which must also meet the other parameters
 E          of proportionality spelt out in Puttaswamy.
       (17) The seeding of Aadhaar with PAN cards depends on the
            constitutional validity of the Aadhaar legislation itself. Section
            139AA of the Income Tax Act 1962 is based on the premise that
            the Aadhaar Act itself is a valid legislation. Since the Aadhaar
 F          Act itself is now held to be unconstitutional for having been
            enacted as a Money Bill and on the touchstone of proportionality,
            the seeding of Aadhaar to PAN under Article 139AA does not
            stand independently.
       (18) The 2017 amendments to the PMLA Rules fail to satisfy the test
 G          of proportionality. The imposition of a uniform requirement of
            linking Aadhaar numbers with all account based relationships
            proceeds on the presumption that all existing account holders as
            well as every individual who seeks to open an account in future
            is a potential money-launderer. No distinction has been made in
 H          the degree of imposition based on the client, the nature of the
JUSTICE K S PUTTASWAMY (RETD) v. UNION OF INDIA                             1075
           [DR.[ASHOK   BHUSHAN, J.] J.]
                D. Y. CHANDRACHUD,

     business relationship, the nature and value of the transactions or     A
     the actual possibility of terrorism and money- laundering. The
     rules also fail to make a distinction between opening an account
     and operating an account. Moreover, the consequences of the
     failure to submit an Aadhaar number are draconian. In their
     present form, the rules are clearly disproportionate and excessive.
                                                                            B
     We clarify that this holding would not preclude the Union
     Government in the exercise of its rule making power and the
     Reserve Bank of India as the regulator to re-design the
     requirements in a manner that would ensure due fulfillment of
     the object of preventing money-laundering, subject to compliance
     with the principles of proportionality as outlined in this judgment.   C
(19) Mobile phones have become a ubiquitous feature of the lives of
     people and the linking of Aadhaar numbers with SIM cards and
     the requirement of e-KYC authentication of mobile subscribers
     must necessarily be viewed in this light. Applying the
     proportionality test, the legitimate aim of subscriber verification,   D
     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      E
     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       F
     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      G
     government or by citizens negates the basis of the rule of law.
     Both propriety and constitutional duty required the Union
     government to move this Court after the enactment of the Aadhaar
     Act for variation of this Court’s interim orders. Institutions of
     governance are bound by a sense of constitutional morality which
     requires them to abide by judicial orders.                             H
1076              SUPREME COURT REPORTS                           [2018] 8 S.C.R.


 A        (21) Identity is necessarily a plural concept. The Constitution also
               recognizes a multitude of identities through the plethora of rights
               that it safeguards. The technology deployed in the Aadhaar
               scheme reduces different constitutional identities into a single
               identity of a 12-digit number and infringes the right of an individual
               to identify herself/himself through a chosen means. Aadhaar is
 B
               about identification and is an instrument which facilitates a proof
               of identity. It must not be allowed to obliterate constitutional
               identity.
          (22) The entire Aadhaar programme, since 2009, suffers from
               constitutional infirmities and violations of fundamental rights. The
 C             enactment of the Aadhaar Act does not save the Aadhaar project.
               The Aadhaar Act, the Rules and Regulations framed under it,
               and the framework prior to the enactment of the Act are
               unconstitutional.
          (23) To enable the government to initiate steps for ensuring conformity
 D             with this judgment, it is directed under Article 142 that the existing
               data which has been collected shall not be destroyed for a period
               of one year. During this period, the data shall not be used for any
               purpose whatsoever. At the end of one year, if no fresh legislation
               has been enacted by the Union government in conformity with
 E             the principles which have been enunciated in this judgment, the
               data shall be destroyed.
       Creating strong privacy protection laws and instilling safeguards may
       address or at the very least assuage some of the concerns associated
       with the Aadhaar scheme which severely impairs informational self-
 F     determination, individual privacy, dignity and autonomy. In order to uphold
       the democratic values of the Constitution, the government needs to
       address the concerns highlighted in this judgment which would provide a
       strong foundation for digital initiatives, which are imminent in today’s
       digital age. However, in its current form, the Aadhaar framework does
       not sufficiently assuage the concerns that have arisen from the operation
 G     of the project which have been discussed in this judgment.
       Devika Gujral                                               Petitions disposed of.




 H