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SC refers Aadhaar challenge to larger bench, makes it non-mandatory in the interim [ORDER]

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download-order IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.494 OF 2012Justice K.S. Puttaswamy (Retd.) & Another … PetitionersVersusUnion of India & Others … Respondents WITH TRANSFERRED CASE (CIVIL) NO.151 OF 2013 TRANSFERRED CASE (CIVIL) NO.152 OF 2013 WRIT PETITION (CIVIL) NO.829 OF 2013 WRIT PETITION (CIVIL) NO.833 OF 2013 WRIT PETITION (CIVIL) NO.932 OF 2013 TRANSFER PETITION (CIVIL) NO.312 OF 2014 TRANSFER PETITION (CIVIL) NO.313 OF 2014 WRIT PETITION (CIVIL) NO.37 OF 2015 WRIT PETITION (CIVIL) NO.220 OF 2015 TRANSFER PETITION (CIVIL) NO.921 OF 2015 CONTEMPT PETITION (CIVIL) NO.144 OF 2014 IN WP(C) 494/2012 CONTEMPT PETITION (CIVIL) NO.470 OF 2015 IN WP(C) 494/2012 O R D E R1. In this batch of matters, a scheme propounded by the Government ofIndia popularly known as “Aadhaar Card Scheme” is under attack on variouscounts. For the purpose of this order, it is not necessary for us to gointo the details of the nature of the scheme and the various counts onwhich the scheme is attacked. Suffice it to say that under the said schemethe Government of India is collecting and compiling both the demographicand biometric data of the residents of this country to be used for variouspurposes, the details of which are not relevant at present.2. One of the grounds of attack on the scheme is that the verycollection of such biometric data is violative of the “right to privacy”.Some of the petitioners assert that the right to privacy is implied underArticle 21 of the Constitution of India while other petitioners assert thatsuch a right emanates not only from Article 21 but also from various otherarticles embodying the fundamental rights guaranteed under Part-III of theConstitution of India.3. When the matter was taken up for hearing, Shri Mukul Rohatgi, learnedAttorney General made a submission that in view of the judgments of thisCourt in M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300and Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, (decided byEight and Six Judges respectively) the legal position regarding theexistence of the fundamental right to privacy is doubtful. Further, thelearned Attorney General also submitted that in a catena of decisions ofthis Court rendered subsequently, this Court referred to “right toprivacy”, contrary to the judgments in the abovementioned cases whichresulted in a jurisprudentially impermissible divergence of judicialopinions. “A power of search and seizure is in any system of jurisprudence anoverriding power of the State for the protection of social security andthat power is necessarily regulated by law. When the Constitution makershave thought fit not to subject such regulation to constitutionallimitations by recognition of a fundamental right to privacy, analogous tothe American Fourth Amendment, we have no justification to import it, intoa totally different fundamental right, by some process of strainedconstruction. [See: M.P. Singh & Others v. Satish Chandra & Others, AIR1954 SC 300, page 306 para 18]“… Nor do we consider that Art. 21 has any relevance in the context as wassought to be suggested by learned counsel for the petitioner. As alreadypointed out, the right of privacy is not a guaranteed right under ourConstitution and therefore the attempt to ascertain the movement of anindividual which is merely a manner in which privacy is invaded is not aninfringement of a fundamental right guaranteed by Part III.” [See: KharakSingh v. State of U.P. & Others, AIR 1963 SC 1295, page 1303 para 20] [Emphasis supplied]4. Learned Attorney General submitted that such impermissible divergenceof opinion commenced with the judgment of this Court in Gobind v. State ofM.P. & Another, (1975) 2 SCC 148, which formed the basis for the subsequentdecision of this Court wherein the “right to privacy” is asserted or atleast referred to. The most important of such cases are R. Rajagopal &Another v. State of Tamil Nadu & Others, (1994) 6 SCC 632 (popularly knownas Auto Shanker’s case) and People’s Union for Civil Liberties (PUCL) v.Union of India & Another, (1997) 1 SCC 301.5. All the judgments referred to above were rendered by smaller Benchesof two or three Judges.6. Shri K.K. Venugopal, learned senior counsel appearing for one of therespondents submitted that the decision of this Court in Gobind (supra) isnot consistent with the decisions of this Court in M.P. Sharma and KharakSingh. He submitted that such divergence is also noticed by theacademicians, Shri F.S. Nariman, Senior Advocate of this Court and ShriA.M. Bhattacharjee[1], Former Chief Justice, High Court at Calcutta andHigh Court at Bombay.7. Therefore, it is submitted by the learned Attorney General and ShriVenugopal that to settle the legal position, this batch of matters isrequired to be heard by a larger Bench of this Court as these matters throwup for debate important questions – (i) whether there is any “right toprivacy” guaranteed under our Constitution. (ii) If such a right exists,what is the source and what are the contours of such a right as there is noexpress provision in the Constitution adumbrating the right to privacy. Itis therefore submitted that these batch of matters are required to be heardand decided by a larger bench of at least five Judges in view of themandate contained under Article 145(3)[2] of the Constitution of India.8. On behalf of the petitioners Shri Gopal Subramanium and Shri ShyamDivan, learned senior counsel very vehemently opposed the suggestion thatthis batch of matters is required to be heard by a larger bench. Accordingto them:(i) The conclusions recorded by this Court in R. Rajagopal and PUCL arelegally tenable for the reason that the observations made in M.P. Sharmaregarding the absence of right to privacy under our Constitution are notpart of ratio decidendi of that case and, therefore, do not bind thesubsequent smaller Benches.(ii) Coming to the case of Kharak Singh, majority in Kharak Singh did holdthat the right of a person not to be disturbed at his residence by theState and its officers is recognized to be a part of a fundamental rightguaranteed under Article 21 which is nothing but an aspect of privacy. Theobservation in para 20 of the majority judgment at best can be construedonly to mean that there is no fundamental right of privacy against theState’s authority to keep surveillance on the activities of a person. Evensuch a conclusion cannot be good law any more in view of the expressdeclaration made by a seven-Judge bench decision of this Court in ManekaGandhi v. Union of India & Another, (1978) 1 SCC 248[3].(iii) They further argued that both M.P. Sharma (supra) and Kharak Singh(supra) came to be decided on an interpretation of the Constitution basedon the principles expounded in A.K. Gopalan v. State of Madras, AIR 1950 SC27. Such principles propounded by A.K. Gopalan themselves came to bedeclared wrong by a larger Bench of this Court in Rustom Cavasjee Cooper v.Union of India, (1970) 1 SCC 248. Therefore, there is no need for theinstant batch of matters to be heard by a larger Bench.9. It is true that Gobind (supra) did not make a clear declaration thatthere is a right to privacy flowing from any of the fundamental rightsguaranteed under Part-III of the Constitution of India, but observed that“Therefore, even assuming that the right to personal liberty, the right tomove freely throughout the territory of India and the freedom of speechcreate an independent right of privacy as an emanation from them which onecan characterize as a fundamental right, we do not think that the right isabsolute”. This Court proceeded to decide the case on such basis.10. However, the subsequent decisions in R. Rajagopal (supra) and PUCL(supra), the Benches were more categoric in asserting the existence of“right to privacy”. While R. Rajagopal’s case[4] held that the “right toprivacy” is implicit under Article 21 of the Constitution, PUCL’s case heldthat the “right to privacy” insofar as it pertains to speech is part offundamental rights under Articles 19(1)(a) and 21 of the Constitution[5].11. Elaborate submissions are made at the bar by the learned counsel forthe petitioners to demonstrate that world over in all the countries whereAnglo-Saxon jurisprudence is followed, ‘privacy’ is recognised as animportant aspect of the liberty of human beings. It is further submittedthat it is too late in the day for the Union of India to argue that theConstitution of India does not recognise privacy as an aspect of theliberty under Article 21 of the Constitution of India. At least to theextent that the right of a person to be secure in his house and not to bedisturbed unreasonably by the State or its officers is expressly recognizedand protected in Kharak Singh (supra) though the majority did not describethat aspect of the liberty as a right of privacy, it is nothing but theright of privacy.12. We are of the opinion that the cases on hand raise far reachingquestions of importance involving interpretation of the Constitution.What is at stake is the amplitude of the fundamental rights including thatprecious and inalienable right under Article 21. If the observations madein M.P. Sharma (supra) and Kharak Singh (supra) are to be read literallyand accepted as the law of this country, the fundamental rights guaranteedunder the Constitution of India and more particularly right to libertyunder Article 21 would be denuded of vigour and vitality. At the sametime, we are also of the opinion that the institutional integrity andjudicial discipline require that pronouncement made by larger Benches ofthis Court cannot be ignored by the smaller Benches without appropriatelyexplaining the reasons for not following the pronouncements made by suchlarger Benches. With due respect to all the learned Judges who renderedthe subsequent judgments - where right to privacy is asserted or referredto their Lordships concern for the liberty of human beings, we are of thehumble opinion that there appears to be certain amount of apparentunresolved contradiction in the law declared by this Court.13. Therefore, in our opinion to give a quietus to the kind ofcontroversy raised in this batch of cases once for all, it is better thatthe ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) isscrutinized and the jurisprudential correctness of the subsequent decisionsof this Court where the right to privacy is either asserted or referred beexamined and authoritatively decided by a Bench of appropriate strength.14. We, therefore, direct the Registry to place these matters before theHon’ble the Chief Justice of India for appropriate orders. ………….…………………..J. (J. Chelameswar) ………….…………………..J. (S.A. Bobde) ………….…………………..J. (C. Nagappan)New DelhiAugust 11, 2015 REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.494 OF 2012Justice K.S. Puttaswamy (Retd.) & Another … PetitionersVersusUnion of India & Others … Respondents WITH TRANSFERRED CASE (CIVIL) NO.151 OF 2013 TRANSFERRED CASE (CIVIL) NO.152 OF 2013 WRIT PETITION (CIVIL) NO.829 OF 2013 WRIT PETITION (CIVIL) NO.833 OF 2013 WRIT PETITION (CIVIL) NO.932 OF 2013 TRANSFER PETITION (CIVIL) NO.312 OF 2014 TRANSFER PETITION (CIVIL) NO.313 OF 2014 WRIT PETITION (CIVIL) NO.37 OF 2015 WRIT PETITION (CIVIL) NO.220 OF 2015 TRANSFER PETITION (CIVIL) NO.921 OF 2015 CONTEMPT PETITION (CIVIL) NO.144 OF 2014 IN WP(C) 494/2012 CONTEMPT PETITION (CIVIL) NO.470 OF 2015 IN WP(C) 494/2012 O R D E R Having regard to importance of the matter, it is desirable that thematter be heard at the earliest. (J. Chelameswar) (S.A. Bobde) (C. Nagappan)New DelhiAugust 11, 2015REPORTABLE IN THE SUPREME COURT OF INDIA CIVIL ORIGINAL JURISDICTION WRIT PETITION (CIVIL) NO.494 OF 2012Justice K.S. Puttaswamy (Retd.) & Another … PetitionersVersusUnion of India & Others … Respondents WITH TRANSFERRED CASE (CIVIL) NO.151 OF 2013 TRANSFERRED CASE (CIVIL) NO.152 OF 2013 WRIT PETITION (CIVIL) NO.829 OF 2013 WRIT PETITION (CIVIL) NO.833 OF 2013 WRIT PETITION (CIVIL) NO.932 OF 2013 TRANSFER PETITION (CIVIL) NO.312 OF 2014 TRANSFER PETITION (CIVIL) NO.313 OF 2014 WRIT PETITION (CIVIL) NO.37 OF 2015 WRIT PETITION (CIVIL) NO.220 OF 2015 TRANSFER PETITION (CIVIL) NO.921 OF 2015 CONTEMPT PETITION (CIVIL) NO.144 OF 2014 IN WP(C) 494/2012 CONTEMPT PETITION (CIVIL) NO.470 OF 2015 IN WP(C) 494/2012 I N T E R I M O R D E R After the matter was referred for decision by a larger Bench, thelearned counsel for the petitioners prayed for further interim orders. Thelast interim order in force is the order of this Court dated 23.9.2013which reads as follows:- “.... All the matters require to be heard finally. List all mattersfor final hearing after the Constitution Bench is over. In the meanwhile, no person should suffer for not getting theAadhaar card inspite of the fact that some authority had issued a circularmaking it mandatory and when any person applies to get the Aadhaar cardvoluntarily, it may be checked whether that person is entitled for it underthe law and it should not be given to any illegal immigrant.” It was submitted by Shri Shyam Divan, learned counsel for thepetitioners that the petitioners having pointed out a serious breach ofprivacy in their submissions, preceding the reference, this Court may grantan injunction restraining the authorities from proceeding further in thematter of obtaining biometrics etc. for an Aadhaar card. Shri Shyam Divansubmitted that the biometric information of an individual can be circulatedto other authorities or corporate bodies which, in turn can be used by themfor commercial exploitation and, therefore, must be stopped. The learned Attorney General pointed out, on the other hand, thatthis Court has at no point of time, even while making the interim orderdated 23.9.2013 granted an injunction restraining the Unique IdentificationAuthority of India from going ahead and obtaining biometric or otherinformation from a citizen for the purpose of a Unique IdentificationNumber, better known as “Aadhaar card”. It was further submitted that therespondents have gone ahead with the project and have issued Aadhaar cardsto about 90% of the population. Also that a large amount of money has beenspent by the Union Government on this project for issuing Aadhaar cards andthat in the circumstances, none of the well-known consideration for grantof injunction are in favour of the petitioners. The learned Attorney General stated that the respondents do not shareany personal information of an Aadhaar card holder through biometrics orotherwise with any other person or authority. This statement allays theapprehension for now, that there is a widespread breach of privacy of thoseto whom an Aadhaar card has been issued. It was further contended onbehalf of the petitioners that there still is breach of privacy. This is amatter which need not be gone into further at this stage. The learned Attorney General has further submitted that the Aadhaarcard is of great benefit since it ensures an effective implementation ofseveral social benefit schemes of the Government like MGNREGA, thedistribution of food, ration and kerosene through PDS system and grant ofsubsidies in the distribution of LPG. It was, therefore, submitted thatrestraining the respondents from issuing further Aadhaar cards or fullyutilising the existing Aadhaar cards for the social schemes of theGovernment should be allowed. The learned Attorney General further stated that the respondent Unionof India would ensure that Aadhaar cards would only be issued on aconsensual basis after informing the public at large about the fact thatthe preparation of Aadhaar card involving the parting of biometricinformation of the individual, which shall however not be used for anypurpose other than a social benefit schemes. Having considered the matter, we are of the view that the balance ofinterest would be best served, till the matter is finally decided by alarger Bench if the Union of India or the UIDA proceed in the followingmanner:-1. The Union of India shall give wide publicity in the electronic andprint media including radio and television networks that it is notmandatory for a citizen to obtain an Aadhaar card;2. The production of an Aadhaar card will not be condition for obtainingany benefits otherwise due to a citizen;3. The Unique Identification Number or the Aadhaar card will not be usedby the respondents for any purpose other than the PDS Scheme and inparticular for the purpose of distribution of foodgrains, etc. and cookingfuel, such as kerosene. The Aadhaar card may also be used for the purposeof the LPG Distribution Scheme;4. The information about an individual obtained by the UniqueIdentification Authority of India while issuing an Aadhaar card shall notbe used for any other purpose, save as above, except as may be directed bya Court for the purpose of criminal investigation. Ordered accordingly. (J. Chelameswar) (S.A. Bobde) (C. Nagappan)New Delhi August 11, 2015 Footnotes:[1] A.M. Bhattacharjee , Equality, Liberty & Property under the Constitution of India, (Eastern Law House, New Delhi, 1997)[2] 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[3] Para 5. .. It was in Kharak Singh v. State of U.P., AIR 1963 SC 1295 that the question as to the proper scope and meaning of the expression 'personal liberty' came up pointedly for consideration for the first time before this Court. The majority of the Judges took the view "that 'personal liberty' is used in the article as a compendious term to include within itself all the varieties of rights which go to make up the 'personal liberties' of man other than those- dealt with in the several clauses of Article 19(1). In other words, while Article 19(1) deals with particular species or attributes, of that freedom, 'personal liberty' in Article 21 takes in and comprises the residue". The minority judges, however, disagreed with this view taken by the majority and explained their position in the following words: "No doubt the expression 'personal liberty' is a comprehensive one and the right to move freely is an attribute of personal liberty. It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression 'personal liberty' in Article 21 excludes that attribute. In our view, this is not a correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person's fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned". There can be no doubt that in view of the decision of this Court in R. C. Cooper v. Union of India, (1970) 2 SCC 298 the minority view must be regarded as correct and the majority view must be held to have been overruled.[4] Para 9. “Right to privacy is not enumerated as a fundamental right in our Constitution but has been inferred from Article 21.”[5] Para 18. “The right to privacy — by itself — has not been identified under the Constitution. As a concept it may be too broad and moralistic to define it judicially. Whether right to privacy can be claimed or has been infringed in a given case would depend on the facts of the said case. But the right to hold a telephone conversation in the privacy of one’s home or office without interference can certainly be claimed as “right to privacy”. Conversations on the telephone are often of an intimate and confidential character. Telephone conversation is a part of modern man’s life. It is considered so important that more and more people are carrying mobile telephone instruments in their pockets. Telephone conversation is an important facet of a man’s private life. Right to privacy would certainly include telephone conversation in the privacy of one’s home or office. Telephone-tapping would, thus, infract Article 21 of the Constitution of India unless it is permitted under the procedure established by law. 19. Right to freedom of speech and expression is guaranteed under Article 19(1)(a) of the Constitution. This freedom means the right to express one’s convictions and opinions freely by word of mouth, writing, printing, picture, or in any other manner. When a person is talking on telephone, he is exercising his right to freedom of speech and expression. Telephone-tapping unless it comes within the grounds of restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution.” ----------------------- 7 18 12

Original author: Mohit Singh

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