CONSTITUTIONAL VALIDITY OF AADHAAR: IS IT A VIOLATION OF RIGHT TO

PRIVACY?

"Privacy is a special kind of independence, which can be understood as an attempt to

secure autonomy in at least a few personal and spiritual concerns, if necessary in
defiance of all the pressures of modern society. It is an attempt that is to say to do
more than maintain a posture of self-respecting independence toward other men; it
seeks to erect an unbreakable wall of dignity and reserve against the entire world."

-Clinton Rossiter, "The free man in the free society", The essentials of freedom.

INTRODUCTION

The Unique Identification Authority of India (UIDAI) introduced a scheme called AADHAAR
which was aimed at issuing identity cards for every citizen across India. It involves a registration
procedure which involves linking of a person’s individual credentials, which consists of his
biometric and demographic data, to a 12 digit number which is exclusive to that particular person
and will thereafter be a proof of identity for that person.1 The scheme is being regarded by the
government as an ambitious step towards the vision of ‘Digital India’, on the rationale that it is an
exhaustive digital database of those enrolled under the scheme.

Currently, AADHAAR has been linked with several schemes and benefits which are run by the
government.2 The point of contention by the government is that this scheme was rolled out for
improving scope in implementing welfare schemes. But the point is, on this ground, the
government is also vehemently violating the right to privacy of an individual under article 21
which is inculcated under right to life and liberty. Article 21 states that “No person shall be denied
his life or personal liberty barring the procedure recognized by law”. The term ‘life’ comprises all
those facets in life which have a bearing on making a person’s life relevant, complete and worth

1
Apka AADHAR, http://www.uidai.gov.in/aapka-aadhaar.html, Last Visited on 18/7/2017.
2
Link your AADHAR, https://rasf.uidai.gov.in/seeding/User/ResidentSplash.aspx, Last Visited on 18/7/2017.
living. According to Black’s Law dictionary, ‘privacy’ means “right to be left alone; right of a
person to be devoid of any publicity uncalled-for; right to live freely from any baseless intervention
by the public in matter with which public is not necessarily concerned”.
Right to Privacy is one of the rights which an individual values the most. Enrollment under the
AADHAAR scheme is optional but there have been several incidents whereby people have been
deprived of their benefits, reason being they weren’t enrolled under the AADHAAR scheme. 3 So
it brings us to the point that, to be eligible for such benefits, individuals have to submit their
demographic and biometric credentials, which is a gross violation of their right to privacy.
Currently, there is no provision for securing personal data of a person, and there are no penalties
invoked in case there is a breach of an individual’s personal credentials. Furthermore, the
AADHAAR scheme is not supported by any legislation, which again violates the person’s right to
life and personal liberty.
The matter regarding the constitutional validity of the AADHAAR scheme still lies sub judice
before the Hon’ble Supreme Court.4 The government has stood by its contention that right to
privacy was never meant to be a fundamental right. Thus, the paper attempts to figure out the
fascinating jurisprudence created for establishment of right to privacy in India. It also seeks to
determine the constitutional validity of the AADHAAR scheme in the context of right to privacy,
because it is an extremely precious right of all individuals.

AADHAAR: OUR PRIVACY IS AT STAKE

The Hon’ble Supreme Court had asked for the Aadhaar issue to be heard in front of a Constitution
Bench. Around 696 days later, on July 18-19, the case is now being presented in front of a five-
member bench to adjudicate upon all issues relating to Aadhaar, which comprises of obligatory
exclusive identification for accessing benefits and violation of privacy. The bench is also expected

3
Mandhani Apoorva,"Meanwhile, the Petitioners shared affidavits of instances where citizens had been denied their
rights: among them, an instance of a non-processing of a scholarship for a poor person, another of an individual
denied a voters identity card for the lack of an Aadhaar card, and another of bank accounts not being allowed
without Aadhaar."- SC reserves order on transfer of Aadhaar Challenge to Const. Bench; AG says Privacy not a
Fundamental Right, Livelaw.in, August 6, 2015 (last visited on 18/7/2017).

4
K.S. Puttaswamy v. Union of India, Writ Petition (Civil) Nos. 494 of 2012 and 829 of 2013.
to make a statement regarding the constitutional validity of the Aadhaar Act, 2016- which was
passed as a money Bill.

This decision was arrived at by a three-judge bench hearing the case of Shanta Sinha vs. Union of
India, which interrogated on the issue of rendering Aadhaar compulsory for access to government
schemes like scholarships and midday meals.5

Shyam Divan, the lawyer arguing in favour of the petitioner, claimed that the whole country was
turning into a ‘concentration camp’ as even children under 18 years of age have no choice but to
submit their demographic and biometric information to be eligible for government benefits. Divan
stated that the government has been constantly handing out notices pursuing people to bring with
them their biometric ID, even after the Supreme Court had given the verdict through an interim
order that Aadhaar would not be compulsory.6

Divan, while disagreeing with the obligatory linking of Aadhaar cards with PAN numbers for tax
filing, had contemplated that Aadhaar is a breach to the right to bodily integrity, dignity and
informational self-determination under Article 21. However, the bench had stated that arguments
with regards to privacy would not be heard. Till now, matters in respect of privacy have not been
heard, and this Constitution Bench is to give a verdict on the future of Aadhaar in India. Some of
the ways in which biometric data can be misused are listed below:

 Fragile Privacy laws: There is no provision for right to privacy, and in today’s digitalized
world, our privacy is of prime significance. Our private credentials are being used by the
government, and on numerous occasions, private data of individuals were leaked. There are
no provisions for Indians to secure their private data against misuse by the government and/or
corporates.

5
Astha Kapoor, “Aadhaar case in Supreme Court: Your privacy is at stake”, http://www.dailyo.in/politics/aadhaar-
pan-right-to-privacy-modi-sc-shyam-divan-uidai-biometrics-leak/story/1/18426.html, July 17, 2017 (last visited on
18/7/17).

6
ibid.
 Blatant misuse of Identity: In February of 2017, Reliance Jio agents were detained for blatant
misuse of fingerprints which were accessed via Aadhaar e-KYC, for the purpose of activation
and sale of Jio Sim cards. This type of misuse of identity via Aadhaar is understandable due to
the fact that the Central Identities Data Repository (CIDR) is centralized and renders our
private data insecure. By misusing identity of others, that very identity can be utilized to
perform transactions including banking in favour of an individual without their permission.
 Data breach: There have been several instances of data breaches of Aadhaar numbers via
websites run by the government. Recent reports suggest that there was a suspicion that
information of Reliance Jio phone numbers (which uses Aadhaar) with names and addresses
of users had been leaked via a security breach and were being sold on the dark web. Due to the
presumption that Aadhaar numbers have become the primary unit of identity in India, so the
linking of private credentials to all kinds of databases, and leaving them open on the internet
is undeniably a bad idea. Another report raised suspicion that private information of around
130 million Aadhaar numbers were leaked from four websites run by the government that deal
with welfare schemes under National Rural Employment Guarantee Act (NREGA) and other
pensions.
 Authorization issue: A vast number of people have suffered authorization issues, like
fingerprints refusing to confirm as their own. This is possible to occur for a plethora of reasons
like discrepancy of fingerprints in the database, server problems, erroneous capturing of
biometric information, among others. Subsequent failure of confirmation of identity means
that the individual will be deprived of necessary benefits from the government.
 No right to opt out: Once an individual registers under the Aadhaar scheme, the individual’s
private information remains in the database for life and doesn’t have a choice and the right to
opt out even if there is no desire to have their biometric information stored.
 Counterfeit Aadhaar registrations: Reports of counterfeit Aadhaar registrations keep cropping
up across India, and the UIDAI has targeted around 34000 centers indulging in malicious
practices.7

7
Astha Kapoor, “Aadhaar case in Supreme Court: Your privacy is at stake”, http://www.dailyo.in/politics/aadhaar-
pan-right-to-privacy-modi-sc-shyam-divan-uidai-biometrics-leak/story/1/18426.html, July 17, 2017 (last visited on
18/7/17).
DO WE POSSESS THE FUNDAMENTAL RIGHT TO PRIVACY AS CITIZENS OF INDIA?

More than 67 years have passed since India implemented a democratic, liberal and secular
Constitution. Today, in 2017, there is an ongoing debate in the Supreme Court on the context of
fundamental rights. The thriving question is: Do we, as citizens of India, possess a fundamental
right to privacy?

This simple question has commenced a massive debate. How do we define privacy? Is privacy
fundamental with regard to right to equality and right to life? Is privacy interconnected with the
very idea of ‘liberty’ — which is one of the fundamental doctrines of the Indian Constitution? Is
privacy restricted to investigation or is it a supreme right entwined with the right to equality and
dignity? These were the questions put before before a nine-judge constitutional bench chaired by
the Hon’ble Chief Justice of India.8

Let us go back to some previous judgments to understand the extent of the right to privacy that
exists before we delve into the various opinions of the aforementioned bench.

It was a first when the Supreme Court of India agreed to deliberate on the issue of right to privacy
in the leading case of M.P. Sharma v. Satish Chandra9 wherein the extent of the police's powers of
investigation and examination were delineated, and it was held by the court that no right to privacy
exists under the Constitution.

The court persisted with the same ground of reasoning in Kharak Singh v. State of U.P,10 a case
on police investigation and domestic visit at night by the police officials. It was found and deemed
by the majority that the Constitution had no exclusive assurance of a 'right to privacy', however
Justice Subba Rao in his minority opinion viewed that “the right to personal liberty takes away not
only a right to be devoid of restraints on his movements, but also devoid of intrusions on his private
life. It is a fact that our Constitution does not explicitly possess a right to privacy as a fundamental

8
Anusha Soni, “Is your right to privacy absolute? SC debates tough questions on Aadhaar”,
http://www.dailyo.in/politics/right-to-privacy-aadhaar-sc-supreme-court-constitution/story/1/18469.html, July 19,
2017 (last visited on 19/7/17).
9
AIR 1954 SC 300.
10
AIR 1963 SC 1295.
right but the said right is a necessary constituent of individual liberty. Every democratic country
seeks to secure domestic life of its individuals; it should give him rest, bodily contentment,
harmony of mind and safety. In the last recourse, a person's home, where he stays with his family,
is his 'castle', it is his barricade against intrusion on his individual liberty."

Thus Justice Subba Rao's opposing view could in fact be termed as the first judicial order and
paved the way for advancement of Right to Privacy jurisprudence in India.

Identical ground of rationale was favoured by the Hon'ble Court in several successive judgments,
which began from 1975 in the case of Govind v. State of Madhya Pradesh11, in which the Court
for the very first time determined Right to Privacy as a fundamental right under Article 21 to its
recent verdict in the Ramlila Maidan Incident v. Home Secretary12, Union of India in 2012. This
legal right to privacy has thereafter been developed as the outcome of a succession of judicial
decisions.

This exquisite and intricate jurisprudence over right to privacy was recently contested in an
ongoing dispute which questioned the constitutional legitimacy of the AADHAAR scheme. This
issue has instantly started the debate which was earlier put to rest regarding the presence of Right
to Privacy under the Indian Constitution. It is being contemplated that in Govind's case13, the
Supreme Court while deciding upon the question of the legitimacy of police investigation,
bypassed the justification fundamental to the previous judgments in MP Sharma and Kharak
Singh.14 So a contrasting opinion was proposed with regard to existence of the right to privacy as
a fundamental right.

In August 2015, a three judge bench of the Hon'ble Supreme Court discussed the issue with regard
to the right to privacy being a fundamental right to a bigger constitutional bench.15 This discussion
has brought about two significant issues i.e. whether fundamental right to privacy is being

11
AIR 1975 SC 1378.
12
(2012) 5 SCC 1.
13
AIR 1975 1378.
14
Oberoi Namit, “The Right to Privacy: Tracing the Judicial Approach following The Kharak Singh Case”,
http://www.commonlii.org/in/journals/INJlConLaw/2007/11.pdf, Last Visited on 17/7/2017.
15
K.S. Puttaswamy v. Union of India, MANU/SC/0849/2015.
endangered or is it an affirmative direction towards a well-founded basis of this right, thus solving
the dispute beyond doubt.

In my opinion, right to privacy is a right which was pursued for a long time and is not Res Integra.
The reference order has therefore created a hint of uncertainty over the right to privacy. The
contrasting views, as proposed, amongst the 8 judge and 6 judge bench opinion respectively in MP
Sharma and Kharak Singh to the following smaller bench decisions like a 3 judge bench decision
in Govind's case, is bad with regard to the law and should not have been given the green light.
Hon'ble court in M.P. Sharma's case had no justification to acknowledge right to privacy as
protected under Article 21, it restricted itself only to Article 20(3) of the Constitution.16 Thus, the
rationale behind the judgment in M.P. Sharma's case had no effect in the current matter.

Furthermore, both the judgments of M.P. Sharma and Kharak Singh were pronounced in the
Gopalan era, i.e. before the Hon'ble Courts landmark judgment in Maneka Gandhi v. Union of
India16. The majority opinion in the Kharak Singh case was founded on the ground that the rights
contained under Article 19 were not incorporated under Article 21, which had been rejected
successive to the Supreme Court's verdict in the Maneka Gandhi case, in which a bench of the
Supreme Court held, while making reference to its previous judgment in the Kharak Singh case,
stated:

"In our opinion this is not the proper methodology. Both are autonomous fundamental
rights, though they are overlapping. The fundamental right to life and personal liberty
has many characteristics and some of them are inculcated under Article 19."

Now let us delve into the various opinions as given by some of the members constituting the
nine-judge constitutional bench.

Gopal Subramanium, the senior counsel, while making an argument in favour of the petitioners,
asserted that privacy is intrinsic to preserving each right under a liberal Constitution. The core of
his argument has been that the central ideas of democracy, freedom and liberty cannot exist without
the existence of the right to privacy. The Preamble to the Indian Constitution inherently preserves
the right to privacy. Mr. Subramanium contended that the key words of "sovereign, republic,

16
Article 20(3) - No person accused of any offence shall be compelled to be a witness against himself.
democratic" stated in the Preamble do bring about an impression of privacy.17 He contemplated
that privacy is a bigger idea and that sharing of personal data is only one of the facets of privacy.
"Privacy is about the freedom of thought, values and individual independence. None of the
fundamental rights can be implemented without presuming a definite level of privacy," he stated,
while addressing the nine-judge bench.

Mr. Subramanium also contemplated that the state is under an obligatory duty to secure
fundamental rights of its citizens. He said that liberty existed even before the Constitution came
into effect and that law has only acknowledged its presence.

Soli Sorabjee, arguing in favour of the petitioners, came to the point that even though privacy is
not expressly indicated doesn't imply the right ceases to exist. He viewed that the freedom of press
has been a consequence of Article 19 and, similarly, the right to privacy can be inferred largely.

A different judge of the bench, Justice Rohington Nariman, affirmed: "Privacy is a vast idea in the
Constitution, we need to describe it. We need to fathom whether privacy emerges from Article 14
(right to equality), Article 19 (right to freedom of expression) or Article 21 (right to life and
personal liberty). Or it can emerge from either with regard to the state of affairs in the case."18

The court has additionally stated that it is impossible to have a comprehensive list of the
circumstances or instances that denote privacy. But the debate has taken a desirable twist that was
longed for. The apex court is now delving into the delineations of the right to privacy- with regard
to the scope and the possible restrictions.

It will now determine whether the right to privacy emerges from Article 14, Article 19 or Article
21.

17
Anusha Soni, “Is your right to privacy absolute? SC debates tough questions on Aadhaar”,
http://www.dailyo.in/politics/right-to-privacy-aadhaar-sc-supreme-court-constitution/story/1/18469.html, July 19,
2017 (last visited on 19/7/17).
18
ibid.
THE CONSTITUTIONAL VALIDITY OF AADHAAR

The constitutional validity of the massive AADHAAR Scheme of the government is sub judice
before the Hon'ble Supreme Court in K.S. Puttaswamy v. Union of India,19 and alongside the
infringement of the right to privacy, the scheme is being contested on several other constitutional
principles.

The reliability of the same could be inferred from the pro-tem orders passed by the Hon'ble Court,
preventing the connection of services and benefits to the 12-digit Aadhaar number.20 It is important
to take into account that there is extensive infringement21 of the disputed orders and it seems that
government is in some kind of rush22 in concluding the data collection and linking procedure so
that there is no scope of reverting back even if the scheme is asserted to be ultra-vires to the
Constitution.

In this scheme an individual has to submit his biometric data, and his iris and fingerprints are
scanned but there is no proper system in place to safeguard that all this data and prevent misuse.
This scheme is not supported by a legislative authorization and is still in force only as an
administrative notification.23 Even if a permissive legislation is passed the same thing would be a
daunting infringement of an individual's right to life and personal liberty. In Maneka Gandhi v.
Union of India24 the majority on the seven-judge bench viewed that any process recognized by law
under Article 21 would have to be "fair, unbiased and rational" and could not be "whimsical,
repressive or random". Article 21 is has enough room to inculcate a plethora of rights within itself.
The AADHAAR scheme being in blatant violation of right to privacy is in contrary to the spirit of
law and extent of Article 21 as laid down in Maneka Gandhi's Case.

19
1978 SCR (2) 3.
20
K.S. Puttaswamy (Retd) v. Union of India (UOI) and Others, (2014) 6 SCC 433.
21
Supra Foot Note at 2.
22
As of 8 August 2015, over 89.3 crore (893 million) Aadhaar numbers had been issued under the scheme, Public
Data Portal, UIDAI, last visited on 17/7/2017.
23
Notification No.-A-43011/02/2009-Admn.I, 28 January 2009, Planning Commission, Government of India"
(PDF). UIDAI, January 28, 2009 (last visited on 19/7/17).
24
AIR 1998 Kant 14.
It cannot be declined that this 12-digit AADHAAR number is intensely being linked to various
governmental welfare schemes; because the purpose of the AADHAAR scheme itself says so.
Thus, an individual who declines to submit his personal demographic or biometric data under the
scheme is being deprived of several state guaranteed welfare benefits, which is an infringement of
his right to life on its own.

In Shantistar v. Narayan,25 the Hon'ble Court stated that Article 21 comprised of rights with regard
to a member of the weaker sections of the society, and they would be provided with residential
housing,26 including pavement inhabitants.27 So, if an individual is deprived of any benefit under
a welfare scheme on the reason of him not having an AADHAAR card, to which he would have
been otherwise eligible to, then such a declination is an infringement to his right to life.

Bearing in mind the wide spread infringement of its previous orders, the Court in August 2015
issued a number of instructions. It ordered the Centre to give wide promotion through electronic
and print media that the card is not compulsory to be eligible for the government schemes.
Furthermore, it was asserted that "AADHAAR will not be used for any other function except
Public Distribution System (PDS), kerosene and LPG distribution system." However, the Court
asserted the fact that even for availing benefits under PDS, kerosene and LPG distribution system,
the card shall not be made compulsory.28

CONCLUSION

As pointed out earlier, the fight for right to privacy has been going on for quite a long time.
Although a mention was made to the constitutional bench, if the court comes clear on the position
of right to privacy as a fundamental right, it would bring the dispute to rest, however it will further
defer the decision on constitutional validity of the AADHAAR scheme.

25
(1990) 2 SCJ 10.
26
id.
27
Sodan v. N.D.M.C, (1990) 3 SCJ 431.
28
Supra at 13.
In the case of Mr. CJ Karira v. Planning Commission, government of New Delhi, an RTI
application was registered by the plaintiff to UIDAI pursuing information concerning the sharing
of data with regard to the AADHAAR card held by a public organization. The appellant filed an
application to central information commissioner under section 19(1) of RTI act.
Coming to how AADHAAR infringes the Right to Privacy is that the exclusive identification has
enabled many government as well as private small agencies to get access to the biometrics
information and consequently, the private credentials of an individual can be put to use by any
agency or person for their own objectives.
Submitting our individual biometric data to unconstitutional authorities for availing unique
identity to avoid the prospect of future problems of identification upto national level is same as
submitting the key of our homes to the police, when there has been a robbery in the vicinity.

This AADHAAR scheme is not only violating the right to privacy of an individual but can also be
viewed as a national hazard as these cards or numbers are not just for the general public but also
for the military personnel and security organizations where biometrics is not only having a
negative effect on privacy but will also act as a breach in nationwide security.

As mentioned earlier, the contrast between the larger judge bench opinion in the cases of MP
Sharma and Kharak Singh respectively and the following smaller bench decisions with regard to
the stand of right to privacy as a fundamental right is ostensible. Therefore, it is concluded that
decision in this case could have taken a different and a better direction with the assistance of well-
established jurisprudence developed over the years regarding the right to privacy following the
Maneka Gandhi case.

A scheme comparable to AADHAAR was attempted as a trial in the UK but the scheme was
discarded on the assertion that it was an intrusion to individual liberty. The AADHAAR scheme
in India has had a similar impact and therefore is an infringement to personal liberty as protected
under Article 21 of the Constitution. This scheme is not supported by any legislation which could
arrange for any guidelines or safety measures under this scheme.