Case Note

Justice K.S. Puttaswamy (Retd.) v. Union of India

The case at hand deals majorly with the issue of ‘right to privacy’ in reference to the
“Aadhaar Card Scheme”, under which the Government of India has been collecting and
compiling the demographic and biometric data of the residents of India.

The petitioners’ contention was that the collection of biometric data is violative of the right to
privacy, implied under Article 21, as well as Article 19(1)(a) of the Constitution of India.

The respondents claimed that in view of M.P. Sharma v. Satish Chandra1 and Kharak Singh
v. State of U.P.2 the legal position regarding the existence of the fundamental right to privacy
is doubtful. And since these cases were decided by constitutional benches (8 and 6,
respectively), the subsequent judgments, beginning from Gobind v. State of M.P.3 up to R.
Rajagopal v. State of T.N.4 and PUCL v. Union of India,5 that have asserted – or at least
referred to – right to privacy, have led to jurisprudentially impermissible divergence of
judicial opinions, since the latter have been decided by division or full benches. In light of the
same, their submission was that a constitutional bench must be instituted under Article
145(3),6 to settle the issue of – i) existence of right to privacy under the aforementioned
articles; ii) the source and extent of such right, if at all it does exist.

The petitioners opposed the said submission, based on the argument that – i) the observations
made in M.P. Sharma regarding the absence of right to privacy do not fall under ratio
decidendi; ii) in Kharak Singh, the majority held that the right of a person not to be disturbed
at his residence by the State falls within the ambit of Article 21. The same is nothing but an
aspect of privacy. Moreover, regarding the state’s right to surveillance, even this was
overruled in Maneka Gandhi v. Union of India;7 iii) furthermore, M.P. Sharma and Kharak
Singh were decided on the lines of A.K. Gopalan v. State of Madras,8 which itself was
declared wrong in R.C. Cooper v. Union of India.9
Petitioners also based their contention(s) on the fact that world over in all the countries where
Anglo-Saxon jurisprudence is followed, ‘privacy’ is recognised as an important aspect of the

1
AIR 1954 SC 300
2
AIR 1963 SC 1295
3
(1975) 2 SCC 148
4
(1994) 6 SCC 632
5
(1997) 1 SCC 301
6
Article 145(3) – The minimum number of Judges who are to sit for the purpose of deciding any case involving
a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any
reference under Article 143 shall be five: Provided that, where the Court hearing an appeal under any of the
provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing
of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation
of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer
the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case
involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such
opinion
7
(1978) 1 SCC 248
8
AIR 1950 SC 27
9
(1970) 1 SCC 248
liberty of human beings. And although not expressly stated, Kharak Singh does provide for
right to privacy to some extent.

Based on the arguments and authorities cited, the honourable court was of the view that
observations made in M.P. Sharma and Kharak Singh can neither be literally accepted, nor
can the same be ignored by subsequent (smaller) benches, without giving appropriate reasons
for the same. In the view of the court, there seemed to be apparent unresolved contradiction
in the law in question. Thus, the court opined that the issue – including the ratio and
jurisprudential correctness of the cases – must be scrutinized by a bench of appropriate
strength, and referred the matter to the honourable Chief Justice of India in furtherance of the
same.

In the meanwhile, the learned counsel for petitioners prayed for further interim orders,
requesting the court to grant an injunction, restraining the authorities from obtaining
biometrics, etc., arguing that the same constitutes a serious breach of privacy. He also argued
that such information can be circulated to other authorities or corporate bodies which, in turn
can be used by them for commercial exploitation.

The respondents countered the argument, stating that there is no precedence insofar as
granting such an injunction is concerned. They further argued that almost 90% of the
population has been issued the Aadhaar, and a large amount of money has been spent on the
same. It was further claimed that the information of Aadhaar holders isn’t shared with third
parties, (although the petitioners still contended it to be breach of privacy).
They further submitted that the scheme in question is extremely beneficial in the effective
implementation of several social benefit schemes such as MGNREGA, PDS system, et al.
They concluded by focussing upon the ‘voluntary’ nature of the scheme/card, stating that the
public would be duly informed regarding the relevant aspects of the same.

The honourable court, having considered the matter, directed the Union of India/UIDA to –
i) publicize, through electronic and print media, the ‘voluntary’ aspect of the scheme; ii) not
make Aadhaar necessary for availing – otherwise due – benefits; iii) not use Aadhaar for
purpose other than the PDS and LPG Distribution schemes; iv) not use the information of the
individuals for any other purpose, except when directed by a court in pursuance of a criminal
investigation.