REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO 494 OF 2012 JUSTICE K S PUTTASWAMY (RETD) & ANR ...PETITIONERS Versus UNION OF INDIA & ORS ...RESPONDENTS WITH T C (C) NO 151 OF 2013 T C (C) NO 152 OF 2013 W P (C) NO 833 OF 2013 W P (C) NO 829 OF 2013 T P (C) NO 1797 OF 2013 W P (C) NO 932 OF 2013 1 T P (C) NO 1796 OF 2013 CONMT. PET. (C) NO 144 OF 2014 T P (C) NO 313 OF 2014 T P (C) NO 312 OF 2014 SLP (CRL) NO 2524 OF 2014 W P (C) NO 37 OF 2015 W P (C) NO 220 OF 2015 CONMT. PET. (C) NO 674 OF 2015 in W P (C) NO 829 OF 2013 T P (C) NO 921 OF 2015 CONMT. PET. (C) NO 470 OF 2015 W P (C) NO 231 OF 2016 CONMT. PET. (C) NO 444 OF 2016 CONMT. PET. (C) NO 608 OF 2016 W P (C) NO 797 OF 2016 CONMT. PET. (C) NO 844 OF 2017 2 W P (C) NO 342 OF 2017 W P (C) NO 372 OF 2017 W P (C) NO 841 OF 2017 W P (C) NO 1058 OF 2017 W P (C) NO 966 OF 2017 W P (C) NO 1014 OF 2017 W P (C) NO 1002 OF 2017 W P (C) NO 1056 OF 2017 AND WITH CONMT. PET. (C) NO 34 OF 2018 in W P (C) NO 1014 OF 2017 3 J U D G M E N T INDEX 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 B.3 Contours of privacy B.4 Informational privacy B.5 Restricting the right to privacy B.6 Legitimate state interests C Submissions C.I Petitioners’ submissions C.2 Respondents’ submissions 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 F Biometrics, Privacy and Aadhaar F.I Increased use of biometric technology F.2 Consent in the collection of biometric data F.3 Position before the Aadhaar legislation 1 (2017) 10 SCC 1 4 F.4 Privacy Concerns in the Aadhaar Act 1. Consent during enrolment and authentication & the right to access information under the Aadhaar Act 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 5. No access to biometric records in database 6. Biometric locking 7. Key takeaways G Legitimate state aim G.I Directive Principles G.2 Development and freedom G.3 Identity and Identification H Proportionality H.I Harmonising conflicting rights H.2 Proportionality standard in Indian jurisprudence H.3 Comparative jurisprudence 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 I Money laundering rules J Savings in Section 59 K Rule of law and violation of interim orders L Conclusion 5 PART A Dr Dhananjaya Y Chandrachud, J A Introduction: technology, governance and freedom 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 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 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 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. 6 PART A 3 In understanding the interface between governance, technology and freedom, this case will set the course for the future. Our 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 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: 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 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 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 2 Granville Austin, Working a Democratic Constitution: A History of the Indian Experience, Oxford University Press (2003) at page 6 7 PART A 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 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 “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 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 to improve welfare is manifested through the measures and programmes which it pursues. 3 Lon L. Fuller and Kenneth I. Winston, The Forms and Limits of Adjudication, Harvard Law Review, Vol. 92, (1978), at pages 353-409 8 PART A 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 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 reminder of the positive duties which the state has to its citizens. While 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 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 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 4 Kwame Anthony Appiah, The Lies That Bind: Rethinking Identity, Liveright Publishing (2018). 5 Francis Fukuyama, Identity: The Demand for Dignity and the Politics of Enlightenment, Farrar, Straus and Giroux (2018). 9 PART A “large enough to be inclusive but small enough to give people a real sense of agency over their society.”6.