Case Comment: Aadhaar Card judgement by Supreme Court Justice K.S. Puttaswamy and Ors.

vs. Union of India (UOI) and Ors. (24.08.2017 - SC): MANU/SC/1044/2017 SANJANA
MITTAL1 ABSTRACT The document contains the case comment on the Aadhaar card verdict
by the honourable Supreme Court. The case comment comprises the analysis on personal or
private data, innovation of Aadhaar card, implementation loopholes, the source code for the
Aadhaar database is neither possessed by the government or Unique Identification Authority of
India (UIDAI), linking of Aadhaar card with pancard, sim cards, e-kyc is being referred to and
utilization of Aadhaar for business purposes. INTRODUCTION The Supreme Court in a nine-
judge bench in Justice K.S. Puttaswamy vs Union of India2 , on 24th August 2017, delivered its
judgement asserting the Right to privacy as a constitutional right and bringing it under the
purview of Article 21. It pronounced protection to be an essential segment of Part III of the
Constitution of India.The remarkable and wide ranging i.e. 547 pages judgmentcontains six
conclusions and a great deal of intriguing perceptions. This is a landmark case which is probably
going to lead constitutional challenges to a wide scope of Indian enactment. BACKGROUND A
retired High Court Judge K.S. Puttaswamy filed a petition in 2012 against the Union of India
before a nine-judge bench of the Supreme Court challenging the constitutionality of
AadhaarCard Scheme of the Government of India, under which the Government of India was
collecting and compiling both the demographic and biometric data of the residents of the country
to be used for various purposes, was attacked on various counts including the infringement of
right to privacy. The case emerged out of a test to an established test to the Aadhaar venture,
which expects to fabricate a database of individual character and biometric data covering each
Indian. The most recent case had concerned a challenge to the government's Aadhaar scheme (a
type of uniform biometricsbased identity card) which the government proposed making
obligatory to access government benefits. The subject ‘privacy is a constitutional right’, was
placed before a three-judge bench of the Supreme Court on the premise that the Aadhaar plan
violates the privacy of an individual. However, Shri Mukul Rohatgi, the Attorney General
contended in the interest of the Union of India that the Indian Constitution doesn't allow explicit
assurance for the right to privacy; with respect to perceptions put forth in the case of M.P.
Sharma v. Satish Chandra and Kharak Singh v. State of Uttar Pradesh by the eight-judge bench
and five-judge bench respectively. It was in this setting a Constitution Bench was set up and
contemplated the necessity of a nine-judge benchto pronounce authoritatively on the status of the
right to privacy. ANALYSIS The Supreme Court held that privacy is an attribute of human
dignity. The concurring opinions of the judges reinforced right to privacy as safeguarding one’s
freedom to make personal choices. It is an incident of fundamental freedom or liberty emerging,
primarily, out of Article 21. 1 IV B.A. L.L.B (ILS LAW COLLEGE, PUNE) 2 Justice K.S.
Puttaswamy and Ors. vs. Union of India (UOI) and Ors, MANU/SC/1044/2017 (India) Published
in Article section of www.manupatra.com Article 21 reads as “No person shall be deprived of his
life or personal liberty except according to procedure established by law.” The concurring
judgments by nine judges covered specific implications of this right, some of which are stated
below: J. Chandrachud (on behalf of himself, C.J. Kehar, J. Agrawal and J. Nazeer): He stated
that privacy was not given up altogether when an individual is in an open circle. It is concomitant
of right of individual to exercise control over his or her personality. He focused on the
informational facet of privacy and advanced a need to introduce a data protection laws in India.
He rejected the contention of privacy as an elitist construct expressing it as a fundamental right
available to both rich or poor. Further, he raises a significant point about the negative and
positive elements of the right to privacy. The negative content restricts the State from unfairly
interfering in the life and personal liberty of a citizen. Its positive content imposes an obligation
on the State to set up such an administrative structure as to limit others from doing as such. J.
Chelameswar: in his opinion, he said that the right to privacy implied a right against constrained
feeding, a right to deny clinical treatment, the right to consume beef and the right to display
symbols of religion in one’s personal appearance and so forth. J. Bobde: He observed that the
assent of the concerned individual was a very basic step for circulation of inherently personal
data such as health records. Further, he also recognised both the positive and negative aspects of
enforcing fundamental rights for the development and dignity of individuals. J. Nariman: He
underwrites Gary Bostwick's calculated comprehension of privacy as enclosing “repose,
sanctuary, and intimate decision”. Adding on, heclassified the facets of privacy into three: non-
interference by the State with the person’s physical body, assurance of individual data or
unauthorised use of personal information (informational privacy) and self-sufficiency over
fundamental personal choices (privacy of choice). J. Sapre: He said that notwithstanding its
existence as an independent right, the right to privacy incorporates an individual’s rights to
freedom of expression and movement and was fundamental to satisfy the constitutional aims of
liberty, dignity and fraternity of the individual. In short, he laid emphasis on the importance of
the Preamble to the Constitution of India and the principles enshrined therein. J. Kaul: He talked
about the right to privacy regarding protection of informational privacy and the right to safeguard
personal reputation. He said that the law must accommodate data protection and regulate national
security exceptions that take into account interception of data by the State. He perceives the
privacy claims against the State and non-State actors. The Court also declared that the right to
privacy is not an absolute right and any invasion of privacy by state or non-state actor must
satisfy the triple test i.e. 1. Legitimate Aim 2. Proportionality 3. Legality Decision that has been
passed by all nine judges holds: (i) The decision in M P Sharma vs. Satish Chandra3 which holds
that the right to privacy is not protected by the Constitution of India stands over-ruled; (ii) The
decision in Kharak Singh vs. State of UP4 to the degree that it holds that the right to privacy is
not protected by the Constitution also stands over-ruled; (iii) The right to privacy is protected as
an intrinsic part of the right to life and personal liberty under Article 21 of the constitution of
India. 3M. P. Sharma and Ors. vs. Satish Chandra and Ors,MANU/SC/0018/1954 (India)
4Kharak Singh vs. State of UP,MANU/SC/0085/1962 Published in Article section of
www.manupatra.com Data is an asset of an organization, and Privacy is some sort of assurance
that an individual requires from an organization. Therefore, Data privacy together alludes to the
capacity of an association that figures out which information hosts to be imparted to third party.
Data Privacy and Data protection are the rights of all individuals in India and each resident must
be aware of it. Each IT expert's fundamental principle is to execute the most grounded security
which nobody can infiltrate. Any way a Network may not be 100% secure however, in case one
can't make it 100% secure, there should be a legislation or system to oversee data infiltrate cases.
Right to privacy should be the basic constituent of Part III of the Constitution of India, which
states our fundamental rights. All laws and executive action coming into the force must abide by
these fundamental rights. In India, the new key aspects of The Personal Data Protection Bill,
2019 are: Transfer of individual data with his/her consent. Establishment of an independent
regulating body i.e. Data Protection Agency. Legislation on the right to be forgotten which
allows an individual to remove data collection and disclosure. However, the aforementioned
Bill is like a two-sided sword. While it ensures the personal data of Indians by entitling them
with data principal rights, on the other hand, it gives the central government with exemptions
which are contrary to the standards of handling personal data. The government can process even
sensitive personal data when required, without clearauthorization from the data principals. In
excess of a billion Indians have so far been enrolled in the Aadhaar program, which sees citizens
issued with a 12-digit number that adjusts to specific biometric information, for example, eye
sweeps and fingerprints. Registration is now become mandatory for filing tax returns, opening
bank accounts, securing loans, buying and selling property and in many more services.
CRITICISM ON COLLECTION OF PERSONAL INFORMATION There have been the various
significant privacy issues that have been ubiquitous in the functioning of Aadhaar scheme and
which have therefore made the framework inclined to information spills. UIDAI has needed to
routinely close down false sites that keep springing up, masking themselves as legitimate sites,
and phishing individuals for their own data. In 2018, around 200 authority government sites
incidentally made individual Aadhaar information open; the issue exacerbated to such a level,
that one could get to a large number of government databases with confidential information just
by Googling it. Once the biometric data is sabotaged, it is sabotaged until the end of time.
CRITICISM ON TECHNOLOGY OF AADHAAR CARD Established assurances can't be
dependent upon the changes of innovation. Biometric technology, which is the nucleus of the
Aadhaar programme is probabilistic in nature, prompting authentication failures. There was a
danger of surveillance of persons dependent on information gathered under the Aadhaar plot and
the information could be abused.It is conceivable through the Aadhaar database to follow the
current area of an individual, even without the check log. Any spillage in the check log
represents an additional peril to the person’s biometric information of being exposed to the hands
of uncertified people. IMPLEMENTATION LOOPHOLES Government of India has been
linking every single social security scheme and advantages to Aadhaar card. However, linking
isn't adequate, and from the day Aadhaar venture has begun it had been in the news for a various
implementation loophole. There are different cases happened in which the Aadhaar executions
had confronted issues. The framework of UIDAI has failed to establish an independent
monitoring body with effective data protection laws. THE SOURCE CODE FOR THE
AADHAAR OWNED BY FOREIGN COMPANY Published in Article section of
www.manupatra.com UIDAI and the biometric database in the Central ID Repository (CIDR) is
open to third-party dealers giving biometric search and de-duplication calculations, since neither
the Central Government nor UIDAI have the source code for the de duplication innovation which
is at the core of the program. The source code is owned by a foreign corporation i.e. L1 Identity
Solutions, without the assent of individual residents. This is in opposition to the fundamental
necessity that an individual has the privilege to ensure herself/himself by having an authority on
their personal data. The privacy of data of 1.2 billion citizens is an issue of national security and
can't be exposed to a foreign establishment. LINKIAGE WITH PAN CARD, SIM CARDS, E-
KYC, ITR The seeding of Aadhaar with PAN cards relies upon the constitutional validity of the
Aadhaar enactment itself. Cell phones have become a pervasive element of the lives of
individuals, connecting of Aadhaar numbers with SIM cards and the prerequisite of e-KYC
validationshould essentially be seen in this light. Cell phones are a storage facility of individual
information and reflects the individual’spreferences, way of life and decisions. Having due
respect to the trial of proportionality, the choice to connect Aadhaar numbers with mobile SIM
cards is neither substantial nor protected. The mere presence of a legitimate state aim won't
legitimize the disproportionate methods, which have been embraced in the instant case.
STRONGLY OPPOSING USE OF AADHAAR FOR COMMERCIAL PURPOSES Utilization
of Aadhaar for Commercial Purposes could prompt misuse of personal data of people without
assent and individual profiling.Information can't be utilized for any reason other than those that
have been affirmed. IMPORTANT PRIVACY AND SECURITY ISSUES CONCERNED ARE:
Identification of people without consent utilising the global Aadhaar number. Identification and
authentication without consent utilizing demographic and biometric information. Surveillance,
tracking or profiling of individuals beyond legal sanctions using the centralised database, either
through external hacks or through insider leaks and collusion. Despite the fact that the UIDAI
going to take great activities yet at the same time there are a few questions over the precision of
biometrics, as thumb impression and iris of residents may get changed or damaged who are
associated with casual labour. In fact, few reports from Rajasthan and other States of India have
stated that biometrics scans are not indicating a match. Hence the utilization of biometric may
likewise prompt significant security dangers. CONCLUSION The Supreme Court of India has
once again appeared as the sole protector of the constitution creating a legal framework for
privacy protections in India. It’s broad interpretation of the right to privacy has paved the way
for a wide range of claims. The judgment covers all the issues and established that privacy is a
fundamental inalienable right, intrinsic to human dignity and liberty under article 21 of the
constitution of India. The judgment gives a way for the decriminalization of homosexuality in
India in Navtej Singh Johar v. Union of India (2018)5 and abolishing the provisions of the crime
of Adultery under in the case of Joseph Shine v. Union of India6 (27 September 2018).