This Case Summary is written by Darshee Madhukallya & Chetan Anand Mohapatra, students of National Law University and Judicial Academy, Assam
BACKGROUND OF THE CASE
The Aadhaar scheme was initially launched back in 2009 by the then Congress Government. In 2014, the Government under Narendra Modi had launched a national identification program which would require the people to provide their biometric detail and has thereby set up and agency as Unique Identification Authority of India (UIDIA). It aimed at providing for the individuals a unique identity card. Through this Aadhar system, the biometric details of individuals including fingerprint, face scan, eye scan are taken and they are provided with a unique 12 digit number. It aimed at curbing corruption and working for the welfare of the people by providing them benefit of various schemes. The government made Aadhaar mandatory for availing welfare schemes like MNREGA, Mid Day Meals, etc.
But there were instances where the confidential details of various individuals got leaked on online platform. This created confusion among the public and at the same time the government had started mandating Aadhaar. This would now allow a person to view every details of an individual, thus violating its privacy. Thus in the year 2012, former Karnataka High Court Retired Justice Mr. Pravesh Sharma and KS Puttaswamy filed a Public Interest Litigation Writ Petition (Civil) No. 494 of 2012 challenging the constitutionality of Aadhaar stating that it violates the Right to privacy.
This case has been one of the lengthiest cases in India. The relevance of the case lies in the fact that, Right to Privacy was declared a fundamental right as well as granted protection under Article 21 of the Constitution. Also this case has cast a vast impact on various legislations pertaining to same sex marriage, beef ban, etc in India.
FACTS OF THE CASE
In the year 2012, a Public Interest Litigation was filed by former Karnataka High Court Justice KS Puttaswamy challenging the act. In the year 2016, the Aadhaar Act was framed as a money bill and passed in the Parliament which provided a legal backing to the unique identification system. After this a second writ petition was filed challenging it and was merged with the earlier petitioned by Justice Puttaswamy. The case was then presented before a three judge bench on the basis that it violated the right to privacy. But the Attorney General of the state argued that in the case of M.P Sharma v. Satish Chandra (1954) SCR 1077 (8 judge bench) and Kharak Singh v. State of Uttar Pradesh, (1963) SC 1295 (6 judge bench), the Supreme Court had refused to accept that the right to privacy is a constitutionally protected rights.
In the year 2015 it was referred to a five-judged bench to discuss the validity of the Aadhaar. However an eleven judge bench was also formed that uphold the dissenting view in the Kharak Singh case which has led to various benched of the SC to recognize the Right to Privacy. In this context, a nine-judge bench of the Supreme Court was formed to question regarding privacy as a fundamental right and in the year 2017, it was decided by the bench that right to privacy fall under the ambit of Article 21. Thus, on 26th September, 2018, the five-judged bench in 4:1 ratio gave its verdict that proving of biometric data is not a violation of fundamental right under Article 14, 15, 19 & 21. Although it upheld the Aadhaar Act as constitutional but had struck down the Section 2d, 33(1) (2), 47 & 57 of the Aadhaar Act, 2016 as unconstitutional. With regard to right to privacy as a fundamental right, the nine-judge bench struck down the decisions laid down in the case of M.P Sharma and Kharak Singh case and held privacy to be a right under the Fundamental Rights.
- Whether the Right to Privacy is protected under the Fundamental Rights under Party III of the Indian Constitution?
- Whether the government has proper measures to protect the privacy of the individuals in the biometric system?
KS Puttaswamy objected that the government has no proper legislative backing to protect the stored data and that there is a chance of data intrusion violating the privacy of individuals. He also pointed that it is a fundamental right to a welfare state and so the provisions of the government to link the Aadhaar card is not valid. Strict application of Aadhaar Act may pose a severe concern as it violates the Fundamental Rights and liberties granted to the Indian citizens He also refereed to cases like Govind v. State of Madhya Pradesh & Ors., (1975) 2 SCC 148; Maneka Gandhi v. Union of India, (1978) 1 SCC 248; R. Rajgopal v. State of Tamil Nadu, (1994) 6 SCC 632, etc where right to privacy was provided constitutional protection.
The defendant argued that the Indian Constitution does not specifically protect the right to privacy and that, as a result, the right to privacy was not guaranteed under the Constitution, and thus Article 21 of the Indian Constitution (the right to life and personal liberty) had no application as seen in both M. P. Sharma and Kharak Singh case.
The 547-page decision comprises six opinions and numerous intriguing insights. It is crucial to note, however, that only the majority view in a ruling is binding on future cases. Chandrachud J. put down the plurality opinion in this case on behalf of four judges (Kehar C.J., Agrawal J., Nazeer J., and himself), while the remaining five judges (Nariman J., Kaul J., Bobde J., Sapre J., and Chelameswar J.) wrote concurring standpoints. As a result, while Justice Chandrachud’s view is the “plurality” opinion, it does not form a majority because it was not signed by five or more judges. Similarly, concurring opinions are not binding and do not set “precedent” for future cases. As a result, the operative part of the judgment, i.e. the binding part, is merely the order signed by all nine judges, which states:
The judgement of an eight-judge panel in M P Sharma case (1954), which concluded that the right to privacy is not protected by the Constitution, has been overturned. The Court’s following decision in Kharak Singh case (1962) is also overruled insofar as it holds that the right to privacy is not guaranteed by the Constitution. The right to privacy is protected as an inherent part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution and the body of case law that developed following Kharak Singh, recognizing the right to privacy, enunciated the correct legal position.
Justice Chandrachud (on behalf of himself, C.J. Kehar, J. Agrawal, and J. Nazeer): He said that an individual’s privacy is not completely abandoned when they are in the public realm. Furthermore, it was determined that the right to privacy comprised both a negative right against State intrusion, such as the prosecution of homosexuality, and a positive right to be protected by the State. On this basis, the Judges determined that India needed to implement a data protection regime.
Justice Chelameswar: In his ruling, the Judge stated that the right to privacy included the freedom to refuse medical care, the right to resist forced feeding, the right to consume beef, and the right to display religious symbols in one’s personal appearance, among other things.
Justice Bobde: The Judge stated that agreement was required for the transfer of intrinsically personal data such as medical information.
Justice Nariman: In this concurring decision, the Judge divided privacy into three categories: non-interference with the individual body, protection of personal information, and autonomy over personal choices.
Justice Sapre: The Judge stated that, in addition to its existence as an independent right, the right to privacy included an individual’s rights to freedom of expression and movement, and that it was necessary to satisfy the constitutional aims of liberty and fraternity, which ensured the individual’s dignity.
Justice Kaul: The Judge discussed the right to privacy in terms of protecting informational privacy and the right to maintain one’s personal reputation. He stated that the legislation must protect data and limit national security exceptions that allow the State to intercept data.
The Court also acknowledged that the right was not absolute, but that it might be limited if this was granted by law, corresponded to a legitimate aim of the State, and was proportionate to the goal it aimed to achieve.
It is a well-established legal concept that a case is only authoritative for what it decides, not for any observations made during the course of the decision or any assertions that may logically arise from it. As a result, in order to establish which portions of the verdict are binding, it is necessary to evaluate each viewpoint and look for points of agreement among a majority of the nine judges. So, if any judge agrees with Chandrachud J.’s opinion on any issue, it would result in a majority of five out of nine, and thus be binding on lesser benches and other courts. For example, because a majority of the judges agree that privacy is an inalienable natural right that is part of the case’s binding aspect.
The Aadhaar Act was enacted to provide identity and empowerment to the society’s underprivileged groups. It assigns each Indian citizen a unique identity number. Because the Aadhaar number is unique, it cannot be replicated. The unique identification ensures that the government’s benefits and subsidies are only available to the people who are eligible for them. Aadhaar can prevent unethical actions and the loss of thousands of crore of rupees. Many privacy rights concerns were raised in the case as well. The arguments for privacy rights were founded on the issues of citizen dignity, informational self-determination, and consent.
The right to privacy was a critical component of the argument. On September 26, 2018, a five-judge bench of the Supreme Court issued a decision in favour of the respondents. The Court affirmed the validity of Aadhaar after striking down certain provisions and sections of the Act that were contrary to the Constitution and violated citizens’ rights. After striking down Sections 33(2) and 57 of the Act, Justice A K Sikri, who wrote the majority opinion, deemed the Aadhaar Act to be lawful. The petitioners expressed a number of concerns, including the right of citizens to privacy, the danger of state surveillance, and the breach of information acquired by the government for citizens’ Aadhaar cards. The petitioners’ questions have weakened UIDAI’s assertion that their system is one of the best in the world and secure enough to keep citizens’ information safe. The Court ruled that the Aadhaar Act was constitutionally legitimate because it was subject to reasonable constitutional constraints.
However, the majority ruling does not protect the demand of autonomy and choice by maintaining the Aadhaar Act. The necessity of Aadhaar for access to government services and benefits, as well as the connection of Aadhaar to the Permanent Account Number (PAN) card permitted by the Supreme Court majority decision, lacks a sufficient constitutional foundation. Even minor exclusions from government initiatives owing to a lack of Aadhaar or an authentication glitch could result in a violation of the constitution’s guarantee of dignity protection. Despite the fact that the majority has struck down Sections 33 (2) and 57, the overall justification for upholding the Aadhaar Act as constitutional fails to meet the criteria of reasonable goal and reasonable means to infringe on the right to privacy.
This case gave a new perspective to the right of privacy of individuals. Although Aadhaar Act contains threat to the privacy of individuals but at the same time it has created a system where people can benefit from the schemes of the Government that aims towards a welfare state. Also every person has a right to privacy and thus any schemes or plan implemented by the government should be framed in a way that it doesn’t infringe the basic fundamental rights of the people. The Court’s expansive understanding of the right to privacy has cleared the way for a diverse set of claims. While the precise limitations of the right will continue to evolve case by case, it is obvious that privacy claims will frequently have to be evaluated against other conflicting interests. In the absence of a specified hierarchy among the many rights protected by Part III of the Constitution, each case will be decided solely on the circumstances at hand and the judicial interpretation. For example, can a law on marital rape infringe on a married woman’s dignity, which is central to her privacy and liberty, in order to protect the family’s “private affairs”? Is the efficiency of having a meta-database of information on all citizens more important than the autonomy of those who oppose its implementation? Can an individual’s “right to be forgotten” on the Internet trump many others’ open information needs? In fact, a PIL was filed before the Delhi High Court just last week alleging that the restitution of conjugal rights provision in the Hindu Marriage Act and Special Marriage Act violates the right to privacy. The true test of privacy will be how successive Courts apply the Puttaswamy ruling to these various problems.
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