MAIN POINTS
Per majority
‘Benefits’ and ‘services’ as mentioned in Section 7 should be those which have the colour of some kind of subsidies etc., namely, welfare schemes of the Government whereby Government is doling out such benefits which are targeted at a particular deprived class. The expenditure thereof has to be drawn from the Consolidated Fund of India.
CBSE, NEET, JEE, UGC etc. cannot make the requirement of Aadhaar mandatory.
For the enrolment of children under the Aadhaar Act, it would be essential to have the consent of their parents/guardian.
On attaining the age of majority, such children who are enrolled under Aadhaar with the consent of their parents, shall be given the right to exit from Aadhaar, if they so choose.
Insofar as the school admissions of children are concerned, requirement of Aadhaar would not be compulsory as it is neither a service nor subsidy. Further, having regard to the fact that a child between the age of 6 to 14 years has the fundamental right to education under Article 21A of the Constitution, school admission cannot be treated as ‘benefit’ as well.
Benefits to children between 6 to 14 years under Sarva Shiksha Abhiyan, likewise, shall not require mandatory Aadhaar enrolment.
For availing the benefits of other welfare schemes which are covered by Section 7 of the Aadhaar Act, though enrolment number can be insisted, it would be subject to the consent of the parents.
No child shall be denied benefit of any of these schemes if, for some reasons, he/she is not able to produce the Aadhaar number and the benefit shall be given by verifying the identity on the basis of any other documents.
Regulation 27(1) struck down, Regulation 26 needs suitable amendment, Section 33(1) of the Aadhaar Act read down.
Section 33(2) struck down.
That portion of Section 57 which enables body corporate and individual to seek authentication struck down,
All matters pertaining to an individual do not qualify as being an inherent part of right to privacy.
Aadhaar Act meets the tests of proportionality and balancing
Section 2(d) struck down.
Section 29 in fact imposes a restriction on sharing information and is, therefore, valid as it protects the interests of Aadhaar number holders.
Other provisions of Aadhaar Act including Section 59 held to be valid,
Aadhaar Act meets the concept of Limited Government, Good Governance and Constitutional Trust.
Aadhaar Act is validly passed as a ‘Money Bill’.
Section 139AA of the Income Tax Act, 1961 held valid.Per Dr Dhananjaya Y Chandrachud, J. (Dissenting)
The phrase “shall be final” used under Article 110(3) aims at avoiding any controversy on the issue as to whether a Bill is a Money Bill, with respect to the Rajya Sabha and before the President. The language used in Article 110(3) does not exclude judicial review of the Speaker’s decision. This also applies to Article 199(3).
The immunity from judicial review provided to parliamentary proceedings under Article 122 is limited to instances involving “irregularity of procedure”. Validity of proceedings in Parliament or a State Legislature can be subject to judicial review when there is a substantive illegality or a constitutional violation.
Article 255 has no relation with the decision of the Speaker on whether a Bill is a Money Bill.
Decisions in Mohd Saeed Siddiqui and Yogendra Kumar are overruled.
The existence of and the role of the Rajya Sabha, as an institution of federal bicameralism in the Indian Parliament, constitutes a part of the basic structure of the Constitution.
A Bill, which has provisions which fall within subclauses (a) to (g) of Article 110(1) and provisions which fall outside their scope, will not qualify to be a Money Bill.
Section 7 fails to fulfil the requirement of a Money Bill. The provisions of the Aadhaar Act do not lie within the scope of sub-clauses (a) to (g) of Article 110(1).
The Aadhaar Act declared unconstitutional for failing to meet the necessary requirements to have been certified as a Money Bill under Article 110(1).
Doctrine of pith and substance is used to examine whether the legislature has the competence to enact a law with regard to any of the three Lists in the Seventh Schedule of the Constitution. The doctrine cannot be invoked to declare whether a Bill satisfies the requirements set out in Article 110 of the Constitution to be certified a Money Bill.
There is a legitimate state aim in maintaining a system of identification to ensure that the welfare benefits provided by the State reach the beneficiaries who are entitled, without diversion.
Adequate norms must be laid down for each step from the collection to retention of biometric data.
Sections 29(1) and (2) of the Act create a distinction between two classes of information (core biometric information and identity information), which are integral to individual identity and require equal protection. Section 29(4) suffers from over breadth.
Sections 2(g), (j), (k) and (t) suffer from over breadth.
There is no clarity on how an individual is supposed to update his/her biometric information, in case the biometric information mismatches with the data stored in CIDR.
The Aadhaar project has failed to account for and remedy the flaws in its framework and design which has led to serious instances of exclusion of eligible beneficiaries.
The Aadhaar project violates widely recognized data minimisation principle.
The architecture of Aadhaar poses a risk of potential surveillance activities through the Aadhaar database.
The protection of the data of 1.2 billion citizens is a question of national security and cannot be subjected to the mere terms and conditions of a normal contract.
The Act does not place any institutional accountability upon UIDAI to protect the database of citizens’ personal information. The Aadhaar Act is also silent on the liability of UIDAI and its personnel in case of their non-compliance of the provisions of the Act or the regulations.
Section 47 of the Act violates citizens’ right to seek remedies.
No substantive provisions, such as those providing data minimization, have been laid down as guiding principles for the oversight mechanism provided under Section 33(2), which permits disclosure of identity information and authentication records in the interest of national security.
Since Section 57 is manifestly arbitrary, it suffers from overbreadth and violates Article 14.
Section 7 suffers from overbreadth since the broad definitions of the expressions ‘services and ‘benefits’ enable the government to regulate almost every facet of its engagement with citizens under the Aadhaar platform. Section 7 is therefore arbitrary and violative of Article 14 in relation to the inclusion of services and benefits as defined.
The legitimate aim of the State can be fulfilled by adopting less intrusive measures as opposed to the mandatory enforcement of the Aadhaar scheme as the sole repository of identification.
When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos, which allows anyone with access to this information to re-construct a profile of an individual’s life. This is contrary to the right to privacy and poses severe threats due to potential surveillance.
The State has failed to satisfy that the targeted delivery of subsidies which animate the right to life entails a necessary sacrifice of the right to individual autonomy, data protection and dignity when both these rights are protected by the Constitution.
Section 59 seeks to retrospectively validate the actions of the Central Government done prior to the Aadhaar Act pursuant to Notifications dated 28 January 2009. and 12 September 2015. Section 59 does not validate actions of the state governments or of private entities. Moreover, the notification of 2009 did not authorise the collection of biometric data. Consequently, the validation of actions taken under the 2009 notification by Section 59 does not save the collection of biometric data prior to the enforcement of the Act. Section 59 fails to meet the test of a validating law.
Since the Aadhaar Act itself is now held to be unconstitutional, the seeding of Aadhaar to PAN under Article 139AA does not stand independently.
The 2017 amendments to the PMLA Rules fail to satisfy the test of proportionality.
The decision to link Aadhaar numbers with mobile SIM cards is neither valid nor constitutional. The biometric information and Aadhaar details collected by Telecom Service Providers shall be deleted forthwith and no use of the said information or details shall be made by TSPs or any agency or person or their behalf.
Defiance of judicial orders (both interim and final) be it by the government or by citizens negates the basis of the rule of law.
The Aadhaar Act, the Rules and Regulations framed under it, and the framework prior to the enactment of the Act are unconstitutional.
The existing data which has been collected shall not be destroyed for a period of one year. During this period, the data shall not be used for any purpose whatsoever. At the end of one year, if no fresh legislation has been enacted by the Union government in conformity with the principles enunciated in this judgment, the data shall be destroyed.Per Ashok Bhushan, J. (Concurring)
Requirement under Aadhaar Act to give one's demographic and biometric information does not violate fundamental right of privacy.
The provisions of Aadhaar Act requiring demographic and biometric information from a resident for Aadhaar Number pass threefold test as laid down in Puttaswamy (supra) case, hence cannot be said to be unconstitutional.
Collection of data, its storage and use does not violate fundamental Right of Privacy.
Aadhaar Act does not create an architecture for pervasive surveillance.
Aadhaar Act and Regulations provides protection and safety of the data received from individuals.
Section 7 of the Aadhaar is constitutional.
The State while enlivening right to food, right to shelter etc. envisaged under Article 21 cannot encroach upon the right of privacy of beneficiaries nor former can be given precedence over the latter.
Provisions of Section 29 is constitutional and does not deserves to be struck down.
Section 33 cannot be said to be unconstitutional as it provides for the use of Aadhaar data base for police investigation nor it can be said to violate protection granted under Article 20(3).
Section 47 cannot be held to be unconstitutional on the ground that it does not allow an individual who finds that there is a violation of Aadhaar Act to initiate any criminal process.
Section 57, to the extent, which permits use of Aadhaar by the State or any body corporate or person, in pursuant to any contract to this effect is unconstitutional and void. Thus, the last phrase in main provision of Section 57, i.e. “or any contract to this effect” is struck down.
Section 59 has validated all actions taken by the Central Government under the notifications dated 28.01.2009 and 12.09.2009 and all actions shall be deemed to have been taken under the Aadhaar Act.
Parental consent for providing biometric information under Regulation 3 & demographic information under Regulation 4 has to be read for enrolment of children between 5 to 18 years to uphold the constitutionality of Regulations 3 & 4 of Aadhaar (Enrolment and Update) Regulations, 2016.
Rule 9 as amended by PMLA (Second Amendment) Rules, 2017 is not unconstitutional and does not violate Articles 14, 19(1)(g), 21 & 300A of the Constitution and Sections 3, 7 & 51 of the Aadhaar Act. Further Rule 9 as amended is not ultra vires to PMLA Act, 2002.
Circular dated 23.03.2017 being unconstitutional is set aside.
Aadhaar Act has been rightly passed as Money Bill. The decision of Speaker certifying the Aadhaar Bill, 2016 as Money Bill is not immuned from Judicial Review.
Section 139AA of Income Tax Act, 1961 does not breach fundamental Right of Privacy as per Privacy Judgment in Puttaswamy case.
Aadhaar Act does not violate the interim orders passed in Writ Petition (C) No. 494 of 2012 and other Writ Petitions.

Headnote:Per A.K. Sikri, J. (For Chief Justice, himself and A.M. Khanwilkar, J.)
       (1) Aadhaar – All personal demographic and biometric information of a person at one place which cannot be duplicated or cloned – Voluntary in nature – Makes it unique – a (Para 56, 57)
       (2) Interpretation of statute – Our constitution influenced by systems prevailing in different jurisdictions – Court therefore liberally using and relying on judgments from different jurisdictions as and when warranted, but not blindly – While referring foreign judgments it becomes necessary to keep in mind the ethos, cultural background and vast socio-economic problems of this country and on that basis to accept a particular norm, or for that matter, to formulate a constitutional norm which is relevant in our context. (Para 72)
       1959 Supp (1) SCR 528; 1950 SCR 594 – Relied upon
       96 US 727 (1878); 303 US 444 (1938); 282 US 607 (1931); (1948) 2 All ER 995; 245 US 418; (1936) AC 578 – Referred
       (3) Interpretation of statute – Validity – Possibility or instances of glitches – No ground for invalidating a statute. (Para 72)
       (4) Democracy – Age of constitutional democracy, that too substantive and liberal democracy – Not “formal democracy” based solely on the rule of people through their representatives – Having other precepts as well like rule of law, human rights, independence of judiciary, separation of powers, etc. – Rule of law essentially precludes arbitrary action – Jurisprudential rule of law – Minimum requirements for the legal system to exist – Substantial rule of law – Guaranteeing fundamental values of morality, justice, and human rights, with a proper balance between these and the other needs of the society – Rule of law is dynamic and ever expanding and can be put alongside the brotherhood of man, human rights and human dignity. (Para 72)
       (1977) 4 SCC 471; (1977) 2 SCC 548; (1996) 1 SCC 742 – Relied upon
       (5) Administration of justice – Duty of Court – Judiciary duty bound to protect democracy as well the Constitution – Equally importantly, to bridge the gap between the law and the society – Also to ensure that social and economic justice is meted out to the deserving lot by affirmative action of the State. (Para 72)
       (6) Administration of justice – In constitutional democracies – Judicial review – Power to review actions of Legislature, Executive and Judiciary itself – To scrutinize validity of any law or action – Articles 32, 136 and 226, Constitution of India – Legislation can eb struck down on grounds that it falls foul of federal distribution of powers, or that it contravenes fundamental rights or other constitutional rights/provisions of the Constitution – Now, ‘manifest arbitrariness’ is recognised as the third ground on which the legislative Act can be invalidated – Doctrine of manifest arbitrariness treated as a facet of both Articles 14 and 21 of the Constitution. (Para 74, 75, 77)
       (2017) 7 SCC 59; (2017) 9 SCC 1; (1996) 2 SCC 226; (1978) 1 SCC 248 – Relied upon
       (2012) 6 SCC 312; (2008) 6 SCC 1; (1996) 3 SCC 709; (2016) 2 SCC 445 – Referred
       (7) Right to Privacy – Articles 14, 19 and 21, Constitution of India – Fundamental right – Physical body privacy, informational privacy and privacy of choice – First deals with physical body of the person, second Also includes right to control the dissemination of personal information – Second one deals with mind of the person – Protects against dissemination of material that is personal to the person and disallowing unauthorised use of such information by the State – Third relates to individual’s autonomy by protecting her fundamental personal choices. (Para 83, 84)
       (2017) 10 SCC 1; (1975) 2 SCC 148 – Relied upon
       (8) Jurisprudence – Comparative law – Though having only a persuasive value, playing a significant role in shaping the minority judgment in Kharak Singh. (Para 84)
       (9) Privacy – Classifivcation – On the the basis of ‘harms’, on the basis of ‘interests’ or as ‘aggregation of rights’. (Para 85)
       (10) Constitution of India – Article 19 and 21 – Restrictions on fundamental right – Any law impacting dignity and liberty under Article 21 and freedom of speech must pass muster under Article 19(2) and be reasonable – Resonable restrictions must be in interests of (i) sovereignty and integrity of India, (ii) security of State, (iii) friendly relations with foreign States, (iv) public order, (v) decency or morality or (vi) in relation to contempt of court, (vii) defamation or (viii) incitement to an offence – Any provision being examined on touchstone of Article 21 must the ‘just, fair and reasonable test’ – Notion of proportionality. (Para 87, 88)
       (2017) 10 SCC 1 – Relied upon
       (11) Right to privacy – Any intrusion into privacy of a person – Must be backed by a valid law, having a legitimate aim and should be proportionate to the need for such interference. - The law in question must also provide procedural guarantees against abuse of such interference – Reasonable expectation of privacy may vary from the intimate zone to the private zone and from the private zone to the public arena – A person posting vital information about himself on Facebook, would not be entitled to claim privacy right. (Para 89, 90, 91)
       (12) Constitution of India – Article 21 – Right to Privacy – Constitutional core of human dignity – Concept of human dignity – A person’s autonomy is an attribute of dignity – Right of choice and right of self determination are facets of human dignity. (Para 94, 95, 97)
       (2018) 5 SCC 1; (2014) 5 SCC 438; (2015) 6 SCC 702; (2016) 7 SCC 761; (2017) 10 SCC 1 – Relied upon
       (13) Constitution of India – Article 21 – Human dignity – Jurisprudential concept of – Normative role of dignity – Basis for constitutional rights – Interpretative principle for determining the scope of constitutional rights – Determines proportionality of a statute limiting a constitutional right – Dignity to be treated as ‘empowerment’ demanding (i) respect for one's capacity as an agent to make one's own free choices; (ii) respect for the choices so made; and (iii) respect for one's need to have a context and conditions in which one can operate as a source of free and informed choice. (Para 105, 107)
       (2011) 4 SCC 454 – Relied upon
       (14) Constitution of India – Article 21 – Human dignity – Public good – Humanistic concept of human dignity – To a particular, large, segment of the society – Based on socio-economic rights read into fundamental rights. (Para 115)
       (2014) 5 SCC 438 – Reliued upon
       (15) Constitution of India – Article 21 – Human dignity – Elements – Core values of human dignity – Intrinsic value, autonomy and community value – Human dignity is a constitutional principle, rather than free standing fundamental rights. (Para 116)
       (16) Constitution of India – Article 21 – Human dignity – Intrinsic value – Origin of a set of fundamental rights like right to life; right to equality before and under the law; right to integrity, both physical and mental including prohibition of torture, slave labour, and degrading treatment or punishment and right to personal honour and image and right to privacy. (Para 116)
       (17) Constitution of India – Article 21 – Human dignity – Autonomy – Ethical element of human dignity – Self-determination – Ability to make personal decisions and choices in life – Private autonomy, public autonomy and the existential minimum or social minimum. (Para 116)
       (18) Constitution of India – Article 21 – Human dignity – Community value – Social dimension of dignity – Emphasises role of the state and community in establishing collective goals and restrictions on individual freedoms and rights. (Pafra 116)
       (19) Constitution of India – Article 21 – Human dignity – Individual dignity – Personal autonomy and leading a dignified life – Where State announces some welfare schemes for giving dignified life in harmony with human dignity and in the process some aspect of autonomy is sacrificed – Courts have to balance the two. (Para 116)
       (20) Doctrine of proportionality – Lingua franca of judicial systems across borders – Proportionality test – A measure restricting a right, must – Serve a legitimate goal – Be a suitable means of furthering this goal – Not be available any less restrictive but equally effective alternative – Not have a disproportionate impact on the right-holder – Oakes test.
       (Para 119, 120, 122, 126)
       (2016) 7 SCC 353; (2017) 10 SCC 1 – Relied upon
       (1986) 1 SCR 103 – Refeerred
       (21) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Sections 2(d), 2(h), 8, 10 and 32 r/w Regulations 18, 20 and 26, Aadhaar (Authentication) Regulation, 2016 and Articles 19(1)(a) to 19(1)(g), 21 r/w 20(3) and 25, Constitution of India – Surveillance state – Process purpose blind – Merging of silos containing information prohibited – Authentication process not exposed to Internet world – Security measures, as per provisions of Section 29(3) read with Section 38(g) as well as Regulation 17(1)(d) strictly followed and adhered to – Sufficient defence mechanism and appropriate protection measures in place – Oversight by Technology and Architecture Review Board and Security Review Committee – Introduction of RD in Aadhaar authentication system rules out any possibility of use of stored biometric and replay of biometrics captured from other source – Requesting entities not legally allowed to store biometrics captured for Aadhaar authentication under Regulation 17(1)(a) – UIDAI does not get any information related to the IP address or the GPS location of authentication – Authority or any entity under its control statutorily surveillance state barred from collecting, keeping or maintaining any information about the purpose of authentication – Section 32(3) – Provisions of Aadhaar Act and the manner in which it operates dispelling the contention that scheme of Aadhaar can be used for prifiling of imdividual making. (Para 151, 152, 153)
       (2010) 7 SCC 263; (1964) 1 SCR 332; (2005) 1 SCC 496; 132 S.Ct. 945 (2012); (2015) Application No. 47143/2006; [2014] All ER (D) 66 (Apr); (2008) ECHR 1581 – Referred
       (22) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Sections 2(d), 2(h), 8, 10 and 32 r/w Regulations 18, 20 and 26, Aadhaar (Authentication) Regulation, 2016 and Articles 19(1)(a) to 19(1)(g), 21 r/w 20(3) and 25, Constitution of India – Protection of data collected by State and its instrumentalities – Matter needs to be taken seriously on the touchstone of constitutionalism and the concept of limited Governance . (Para 162)
       (23) Data protection – Section 43A and Section 72A, Information Technology Act, 2000 and Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 – Biometrics form a part of “personal information” – Safeguards in India – Privacy policy – Consent of person providing personal data willingly – Data to be collected only for lawful purposes if considered necessary – Grievance redressal – In Europe – Adherence to principles of consent, purpose and storage limitation, data differentiation, data exception, data minimization, substantive and procedural fairness and safeguards, transparency, data protection and security – Importance of data protection in processing data of the citizens – Accepted norm – Necessary to prevent a disproportionate infringement of the Fundamental Right of Privacy of a citizen. (Para 165, 166, 187, 189, 190)
       (2017) 10 SCC 1 – Relied upon
       [2008] ECHR 1581; [2014] All ER (D) 66 (Apr); Joined Cases C-203/15 and C-698/15, 2016; [2.03.2010, 1 BvR 256/08, 1 BvR 263/08, 1 BvR 586/08]; [2016] 2 W.L.R. 873; Eur. Ct. H.R. 2016 – Referred
       (24) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 32 r/w Regulation 26, Aadhaar (Authentication) Regulation, 2016 – Information collected in accordance with section 2(k) and regulation 4, Aadhaar (Enrolment and Update) Regulations, 2016 – Mandatory and optional information – Act only uses non sensitive demographic information where no reasonable expectation of privacy exists – Like name, date of birth, address, gender, mobile number and e mail address – Sensitive information like race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history specifically prohibited by section 2(k) – Section 32 (3) and Regulation 26 specifically prohibiting authority from collecting, storing or maintaining, either directly or indirectly any information about the purpose of authentication – Principle of data minimization largely followed. (Para 193, 194, 195)
       (25) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 2(c) – Authentication – Authority neither verifying the location of the person nor knowing the purpose of authentication – Regulation 26 not entitling the authority to store data about the purpose – Authentication record only contains information about the identity of the RE (eg nic.in) and not about the organisation which is requiring authentication through the RE – No question of real time surveillance and profiling. (Para 197)
       (26) Aadhaar (Authentication) Regulations, 2016 – Regulations 20 and 26/27 r/w Section 10 – Requirement of keeping authentication records for 2+5 years – Not justified if authentication is the only purpose – Held, Regulation 26 needs to be amended to restrict it to process meta data, and to exclude other type of meta data specifically – Held, retention of data for a period of six months is more than sufficient – It needs to be deleted thereafter except when such authentication transaction data are required to be maintained by a Court or in connection with any pending dispute – Regulations 26 and 27 directed to be amended accordingly. (Para 199, 201, 205)
       (27) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 57 – Purpose limitation – Section 57 not an enabling provision – Not allowing Aadhaar to be used for any purpose other than section 7 – Rather a limiting provision – Limiting its use to purposes sanctioned by any law in force – Proviso to section 57 requiring use of Aadhaar subject to procedure and obligations under section 8 – Some portion of Section 57 found offending and declared unconstitutional. (Para 204)
       (28) Aadhaar (Data Security) Regulation 2016 – Regulation 3(i) & (j) – Data protection and safeguards– Enabling partitioning of CIDR networks into zones based on risk and trust and other security measures – CIDR declared protected under Section 70, Information Technology Act, 2000 – Unlawful access punishable with 10 years imprisonment and fine – Storage involving end to end encryption, logical partitioning, firewalling and anonymisation of decrypted biometric data – Breaches punishable – Biometric information deemed to be an “electronic record”, and “Sensitive personal data or information” under IT Act, 2000 – Other identity information shared with REs only for authentication purpose – Biometric information not permitted to be stored – Only the logs of authentication transactions maintained for a short period – Full identity information never transmitted back to RE – Statutory bar from sharing Biometric information [Section 29(1)(a)/Section 29(4)] – Data centres of ASA, REs and CIDR required to be within the territory of India – Enrolment and Authentication processes strongly regulated to keep data secure. (Para 208, 209, 210)
       (29) Aadhaar (Authentication) Regulations, 2016 – Regulation 19 – Authentication Service Agency (ASA) and data hacking – Systems and operations audited by information system auditor – ASA’s server performs basic compliance and completeness checks on the authentication data packet before forwarding it to the CIDR – Adequate firewalling and other safety features in place – Issue of hacking, in view of newspaper reports, left open – Source code of biometric solutions remaining with the provider foreign companies – Yet, data seured as the software operates automatically and stored offline – No opportunity to Biometric Solutions Provider (BSP) to extract data. (Para 211, 212, 213)
       (30) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 27 and Section 33, 57 r/w Regulation 26 – Substantive, procedural or judicial safeguards – Authentication records under Reguation 27(1) directed not to be kept beyond a period of six months – Metabase relating to transaction, as provided in Regulation 26 held impermissible in its present form – Section 33 read down by dirdcting to afford opportunity to the individual whose information is sought to be released – Section 33(2) struck down – Section 57 allowing body corporate and individual to seek authentication held unconstitutional – Respondents impressed upon to bring out a robust data protection regime – With these safeguards most of the apprehensions of petitioners stand assuaged – Need for a proper legislative mechanism for data protection – B.N. Srikrishna Committee Report and the Draft Data Protection Bill referred. (Para 219, 221)
       (2013) 6 SCC 620 – Relied upon
       (31) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Sections 7, 5 and 8 – Whether violative of right to privacy – All matters pertaining to an individual do not qualify as being an inherent part of right to privacy – State action restricting privacy has to pass triple test of proportionality – (i) existence of a law (ii) must serve a legitimate State aim and (iii) proportionate – Instantly, Act, 2016 fufills the first requirement – Linkage of Aadhaar to welfare schemes ensures delivery of subsidies, benefiots and services under these schems to the real beneficiaries plugging leakages – The Act, held, serves a legitimate State aim of ensuring the targeted population to live a dignified life – Measures enumerated and being taken as per Section 7 r/w Section 5 held rationally connected with fulfillment of objectives of the Act – Aadhaar number unique identity, cannot be reassigned to any individual – Purpose of sections 7 amd 8 is to ensure that only rightful persons receive these benefits – Held, apart from the system of unique identity in Aadhaar and authentication of the real beneficiaries, there is no alternative measure with lesser degree of limitation which can achieve the same purpose. (Para 260, 261, 263, 266, 270, 273, 276, 277, 279, 280)
       (1975) 2 SCC 148; (2017) 7 SCC 59; (1973) 4 SCC 225; Writ Petition (Civil) No. 215 of 2005; (2017) 7 SCC 59; (1973) 4 SCC 225; (2001) 5 Scale 303; Writ Petition (Civil) No. 265 of 2006; (1996) 4 SCC 37; (1992) 3 SCC 666; 1985 SCR Supl. (2) 51; (1981) 2 SCR 516 – Relied upon
       (1975) 2 SCC 148; (2017) 10 SCC 1; (2010) 6 SCC 614; (2002) ZACC 22; 497 US 361 (1990); Modern Dental College; Writ Petition (Civil) No. 215 of 2005 – Referred
       (32) Reasonable expectation – Claim right to privacy – Concern ablout some harm likely to be inflicted on account of alleged act – The concern should be real and not imaginary or speculative – Secondly, the concern should be freasonable and not flimsy or trivial. (Para 289)
       389 U.S. 347; 442 US 735; (2010) 1 WLR 123 – Referred
       (33) Balancing test – Demographic information required by many other enactments as well – Collection of biometric information, minimum for authentication – Held reasonable – Concerns raised about storage and retention of this data, whenever authentication takes place – Apprehension of profiling – Taken care of by Court. (Para 294, 295, 296)
       (34) Balancing test – Between social purpose and constitutional rights – Right to privacy vis-à-vis social or public interest and restrictions imposed – Right to privacy vis-à-vis right to live with dignity, i.e., right to food, shelter and employment – Right based approach – Aadhaar ensuring stoppage of leakage/pilfering of public money spent under varriuous schemes to provide right to food, shelter, education, work etc like subsidized food and kerosene to BPL families, MGNREGA – Also ensuring that benefits reach the rigjhtful persons – Invasion of privacy in the process held minimal – Not having disproportionate effect on the right holder. (Para 285, 308)
       (2000) ZACC 19; App. No. 45603/05 – Referred
       (35) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Sections 7 and 8 – Validity – Balancing test – Right based approach – Dignity in the form of autonomy (informational privacy) and dignity in the form of assuring better living standards, of the same individual – Enrolment in Aadhaar of the unprivileged and marginalised section of the society, in order to avail the fruits of welfare schemes of the Government – Amounts to empowering these persons – The scheme ensures dignity to such individuals – No data collection on the movements of such individuals ruling out possibility of creating their profile – Held, Act has struck a fair balance between the right of privacy of the individual with right to life of the same individual as a beneficiary.. (Para 309, 313,
       (2003) 4 SCC 399; (2016) 7 SCC 221 – Relied upon
       515 US 646 (1995) – Referred
       (36) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 7 – An enabling provision – Does not deprive a person from availing benefits if aythenticatkion fails – The person can establish his/her identity by any other means – Aadhaar scheme, a work in progress – Act fulfilling larger public interest striving to benefit millions of deserving people – Whole scheme cannot be shelved only because of authentication failure some beneficiaries are excluded – Suitable provision should be made in the concerned regulations for establishing an identity by alternate means in case of authentication failure. (Para 315, 318)
       Interpretation of statute – Validity – Parliamentary legislation can not be invalidated on disputed claims of fact. (Para 317)
       (37) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 7 – Expression ‘benefits’ – Apprehension of the government bringing within its sweep each and every kind of government activity – Government already brought within the sweep of Section 7, almost 139 such subsidies, services and benefits – Held, ‘benefits’ should be such which are in the nature of welfare schemes for which resources are to be drawn from the Consolidated Fund of India – Held, actions by CBSE, NEET, JEE and UGC requirements for scholarship shall not be covered under Section 7 – Also held, a benefit which is earned by an individual (e.g. pension by a government employee) cannot be covered under Section 7. (Para 321, 322)
       (38) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 7 r/w Article 21A, Constitution of India – Requirement of Aadhaar for children – Aadhaar being voluntary and willing to be allotted with consent of the individual – Children not capable of giving consent – Held, admission of a child in his school cannot be covered under Section 7 of the Aadhaar Act as it is neither subsidy nor service – ‘Benefits’ in section 7 needs to be restricted meaning – Aadhaar may be required for government scholarships – When there are alternative means, insistence on Aadhaar would not satisfy the test of proportionality – Section 3, Juvenile Justice Act, 2015 referred. (Para 325, 327, 330)
       (2017) 10 SCC 1; (2007) 15 SCC 49 – Relied upon
       (2008) 3 WLR 1360 – Referred
       (39) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 2(l) read with Regulation 23 – Challenge to giving enrolment work to private agency – Aadhaar process ensures that concerned data is immediately encrypted and transmitted to CIDR – Goes out of conrol of enrolling agency – Challenge fails. (Para 334)
       (40) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 2(v) – Definition of resident – Held, nothing sworng with the definition of resident – Respondents directed to provide adequate mechanism to ensure bthat illegal; immigrants do not get Aadhaar enrolemnt – Provision as such held not unconstitutional. (Para 335)
       (41) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 3 – Enabling provision entitling every resident to obtain Aadhaar number – Voluntary in nature. (Para 336)
       (2017) 7 SCC 59 – Relied upon
       (42) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 5 – Held, provision is for the benefit of the categories of persons mentioned therein. (Para 337)
       (43) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 6 – Updation of demographic and biometric information – when becoming necessary under certain circumstances – Remains voluntary. (Para 338)
       Sections 9 and 11 to 23 – Apprehension of surveillance State – In the scheme of the Act apprehension dispelled. (Para 339, 340)
       (44) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 23 r/w section 54 – Power to make Regulstions – Held, not excessive delegation to Authority. (Para 341)
       (45) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 29 r/w Regulation 3, 28 – Section 29 imposing restrictions on sharing of data – Sub-section 2 permits sharing identity information except biometric information and only in accordance with provisions of the Act in specified manner – When sharing is with consent of individual, such provision cannot be held unconstitutional – Any regulation impigning upon privacy of the individual can always been challenged – Presently there is no such tegulation – Provisions upheld. (Para 342)
       (46) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 33 – Sub-section (1) an exception to Section 28(2), Section 28(5) and Section 29(2) – Disclosure of information only on orders of a court and after hearing the person concerned – Sufficient protection – Section 33(2) – Order passed under – Subject to review by Oversight Committee – Such direction valid for only three months – National security, not defined, held to be matter of policy not law – Disclosure of information in the interest of national security cannot be faulted with – The provisions to the extent it gives power to Joint Secretary struck – Respondents given liberty to suitably enact a provision giving powrer to a higher ranking officer preferably along with a judicial officer. (Para 348, 349)
       (2014) 5 SCC 409; (2017) 10 SCC 1 – Relied upon
       (47) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 47 – Providing for filing of complaint only by Authority – Held, xsection 47 should be amended to allow individual/victim whose right is violated to file a complaint and initiate proceedings. (Para 353)
       (1997) 1 SCC 556; (2014) 9 SCC 772 – Referred
       (48) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 48 – Cannot be treated as vague or arbitrary – ‘Public Emergency’ – Can always be subject to scrutiny of the Courts. (Para 354)
       (49) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 57 – Enabling Aadhaar holder to establish his/her identity for any purpose as well – Only an enabling provision entitling Aadhaar number holder to take the help of Aadhaar for the purpose of establishing his/her identity – Anybody voluntarily offering Aadhaar card as a proof of his/her identity, may not be a problem. (Para 367)
       (2001) 2 SCC 386; (2004) 2 SCC 130; (2016) 7 SCC 353; (2017) 10 SCC 1 – Relied upon
       (1986) 1 SCR 103; (1984) 2 SCR 66; (1998) 1 SCR 493; (1992) 2 SCR 731; (1985) 1 SCR 295 – Referred
       (50) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 59 – Validating acts done between 28th January, 2009 and pasing of the Act in 2016 – Held, retrospective – Legislature empowered to incorporate deeming provisions in a statute – Aadhaar scheme/project under the Act saved from challenge to its constitutionality – No reason to invalidate the enrolments made prior to passing of the Act – Solution lies in eliciting ‘consent’ of all persons enrolled prior to the passing of the Act – Validity of Section 59 upheld – As a corollary, Aadhaar for the period from 2009 to 2016 also stands validated. (Para 371, 372, 373)
       (1963) 2 SCR 747; (1966) 2 SCR 158; (1969) 1 SCC 248; (2017) 3 SCC 362 – Relied upon
       (51) Constitution of India – Article 245, Part IV – Concept of limited government – Underlying difference between a ‘Constitution’ and ‘Constitutionalism’ – Directive Principles of State Policy (Part IV) also envisage a limited government – However, violation of fundamental rights cannot be justified by State on grounds of administrative convenience in meeting its obligations under the Directive Principles of State Policy – Protection of fundamental rights is essential for public welfare contemplated under the Directive Principles of State Policy – Principles of constitutional trust, constitutional morality and good governance deeply intertwined with principle of minimum government – With the offending provisions struck down, some others read down, and some tweaked with, there is no danger of Aadhaar destroying concept of limited governance and creating surveillance State. (Para 375, 378, 379, 388)
       (1967) 2 SCR 454; (1975) 2 SCC 148; (1987) 1 SCC 124; (1991) 4 SCC 699; (2007) 2 SCC 1; (2011) 7 SCC 547; (2017) 10 SCC 1; (1980) 3 SCC 625; (1973) 4 SCC 225; (2014) 9 SCC 1; (2018) SCC Online SC 661; (2017) 7 SCC 59 – Referred
       (52) Constitution of India – Article 110 – Money Bill – Having regard to the overall scheme of bicameralism, Article 110 has to be strictly interpreted. (Para 404)
       (53) Constitution of India – Article 32 – Decision of Speaker of the Lok Sabha – Held, justiceable in certain circumstances. (Para 405)
       (54) Constitution of India – Article 110 and section 7, Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 7 having elements of Money Bill – Purpose of the Act is to expand coverage of all kinds of aid, support, grant, advantage, relief provisions, facility, utility or assistance which may be extended with the support of the Consolidated Fund of India with the objective of targeted delivery – Expression subsidy, benefit or service ought to be understood in the context of targeted delivery to poorer and weaker sections of society – Section 7, core provision of the Act, satisfies requirements opf Article 110. (Para 406, 407, 408)
       (1994) 3 SCC 1; (2007) 3 SCC 184; (2010) 4 SCC 1; (1992) Supp. 2 SCC 651 – Relied upon
       (55) Constitution of India – Article 110 and sections 23(2)(h) and 54(2)(m), Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Held, these provisions can be read as incidental to the main provision, section 7 – Hence covered by Articcle 110(g). (Para 409, 410)
       (56) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 57 – Enabling provision – Enabling Aadhaar number holder to use it for other purposes as well – No dilution of section 7 – Part of Section 57 has already declared unconstitutional. (Para 412)
       (57) Interpretation of statute – Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Validity of introduction as Money Bill – Aeticle (57) 110, Constitution of India – section 7 of the Act, the core perovision, fulfills requirement of Article 110 – Other provisions viz 23(2)(h), 54(2)(m) and 57 – Held incidental to the core provision, section 7 – Held, the Act was rightly introduced as Money Bill. (Para 412)
       (2014) 11 SCC 415; (2016) 3 SCC 183; 1963 Supp (1) SCR 275; AIR 1960 SC 1186; (1969) 1 SCR 478; (1957) SCR 399; (2002) 8 SCC 228 – Relied upon
       AIR 1963 Pat 16 – Cited with approval
       (1991) Supp. 2 SCC 608; (1993) Supp.3 SCC 97’; (1991) 4 SCC 699 – Referred
       (58) Income Tax Act, 1961 – Section 139AA – Validity – Tested on touchstone of legislative competency and contravention of fundamental rights, also whether it is manifestly arbitrary – Validity of section 139AA already upheld – Issue on privacy rights not examined – Right to privacy though a fundamental right under Article 21, subject to limitations – Section 139AA seeks to safeguard legitimate public interest and larger public interest – Section 139AA only an extension of Section 139A requiring linking of PAN number with Aadhaar number – Persons holding PAN and having provided information cannot claim to have any legitimate expectation of withholding any data required for Aadhaar under the ground of “privacy” – Transactions totalling around Rs. 33,000 crore avoiding PAN detected by PAN-Aadhaar likage – Held, State having justifiable reason for collection and storage of data in the form of Aadhaar and linking it with PAN insofar as Section 139AA is concerned. (Para 413, 414, 420, 424)
       (2017) 7 SCC 59; (2017) 9 SCC 1; (2017) 10 SCC 1; (2016) 7 SCC 221 – Relied upon
       (59) Prevention of Money Laundering (Maintenance of Records) Rules, 2005 – Rule 9 – Liking of Aadhaar to bank account – Validity challenged as being violative of Articles 14, 19(1)(g) and 21, Constitution of India – Held, provision does not meet test of proportionality and is also violative of right to privacy of a person which extends to banking details – It targets every resident of the country as a suspicious person – Presumption of criminality is disproportionate and arbitrary – Amendment to Rule 9, by the Seventh Amendment Rules, 2017, in the present form, held to be unconstitutional. (Para 429, 430, 431, 436)
       (2011) 8 SCC 1; (1995) 3 SCC 100 – Relied upon
       (60) Linking of Mobile Number with Aadhaar – Imposed by circular of DoT dated March 23, 2017 – No statutory provision permitting such circular – Circular issued pursuant to Lokniti Foundation, not under Section 4 of the Indian Telegraph Act, 1885 – Present lis not raised in Lokniti Foundation – Not a prececent and law – Circular not having any legal backing – Fails to meet requirement of proportionality – a infringing right to privacy – Circular dated March 23, 2017 held unconstitutional. (Para 441, 442)
       (2017) 7 SCC 155 – Distinguished
       (61) Administration of justice – Aadhaar Act passed during pendency of instant petitions – Observed, respondents should have obtained clarification from the Coirt before issuing the circulars and orders under Section 7. (Para 445)
       (2017) 7 SCC 59 – Referred
       Per Dr Dhananjaya Y Chandrachud, J. (Dissenting)
       (62) Constitutional transformism – Defining and limiting State’s powers, while expanding the ambit of individual rights and liberties – Protecting citizens from totalitarian excesses – Establishing order between the organs of the State, between the State and citizens and between citizens. (Para 13)
       (63) Constitution of India – Interpretation – Must meet the needs of a changing society. (Para 14)
       (63) Right to privacy – Protection of – A natural right inhering in every individual as well as “a constitutionally protected right” – Right to life and personal liberty protected under Article 21 and other facets of freedom and dignity guaranteed under Part III, Constitution of India – Civil-political rights not subservient to socioeconomic rights – Privacy reflects right of the individual to exercise control over his or her personality – Privacy protects the right to make choices essential to a dignified life – Privacy is necessary for the exercise of liberty. (Para 18, 22, 23, 24)
       (2017) 10 SCC 1 – Relied upon
       (64) Privacy – Connotations – Spatial control – Decisional autonomy – Informational control – Not exhaustive – Informational privacy confers right to an individual to disseminate certain personal information for limited purposes alone – Consent, transparency and control over information crucial to informational privacy – Any restriction on right to privacy would be subjected to strict constitutional scrutiny – Proportionality standard to test a law infringing privacy – Right to privacy may be curtailed on ground of legitimate state interests – Balance to be struck between individual interests and legitimate concerns of the state. (Para 27, 28, 29, 30, 32, 33, 35, 37)
       (65) Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 – Section 7 – To establish identity of an individual for receipt of a subsidy, benefit or service for which expenditure is incurred or the receipts form part of the Consolidated Fund of India – On fulfilling these conditions the individual may be required to (i) undergo authentication; or (ii) furnish proof of possession of an Aadhaar number; or (iii) provide proof of an application for enrolment where the Aadhaar number has not been assigned – A failure of authentication cannot be held out as a ground to deny benefits, subsidies or services – Contrasting section 7, section 3 speaks of an entitlement to obtain an Aadhaar number – Makes possession of an Aadhaar number optional – Section 7 overrides Section 3. (Para 46)
       (66) Constitution of India – Article 110(3) – Providing tht decision of the Speaker of the House of the People on whether a Bill is Money Bill or not shall be final – Held, this finality would operate as between the Houses of Parliament – Does not exclude judicial review by a constitutional Court – Judicial review being an essential component of constitutional supremacy – Decision of Speaker of Lok Sabha in certifying a Bill as a Money Bill – Must comply with constitutional principles – Where a constitutional provision evinces a specific intent to exclude judicial review, clear words to that effect are used – Articles 243O(a), 243ZG(a) and 329(a) – Ultimate test is whether the exclusion of judicial review is express and specific and, whether such an exclusion is designed to achieve a constitutional purpose that meets the test of functionality, assessed in terms of a constitutional necessity. (Para 68, 70, 71, 72)
       (2018) 7 SCC 1; 1952 SCR 218; (1971) 1 SCC 396; (1985) 3 SCC 398; (1992) Supp (2) SCC 651; (2017) 3 SCC 1 – Relied upon
       (67) Constitution of India – Article 110 and 122 – Article 122 prohibiting courts from examining validity of any proceedings in Parliament on the ground that there was “any alleged irregularity of procedure” – Article 122 will not save action of Speaker contrary to constitutional norms provided under Article 110 – Constitution does not endorse a complete prohibition of judicial review under Article 122 – It is only limited to an “irregularity of procedure”. (Para 76, 77)
       AIR 1965 SC 745; (2010) 4 SCC 1; (2007) 3 SCC 184 – Relied upon
       1963 Supp (1) SCR 275; AIR 1960 SC 1186 – Referred
       (2014) 11 SCC 415; (2016) 3 SCC 183 – Overruled
       (68) Constitution of India – Article 80 – Rajya Sabha – Acts as an institution of balance in relation to the Lok Sabha and represents the federal structure – Existence and role of the Rajya Sabha constitute a part of the basic structure of the Constitution – Not subject to dissolution [Article 83(1)] – Decision of Speaker on whether a Bill is a Money Bill – Not a matter of procedure – Directly impacts on role of the Rajya Sabha and, therefore, on the working of the federal polity – Such power of the Speaker cannot be unbridled or bereft of judicial scrutiny. (Para 90, 92, 93, 94)
       AIR 1994 SC 1998; (2006) 7 SCC 1 – Relied upon
       (69) Interpretation – Constitution – Court cannot rewrite the Constitution, particularly where it is contrary to text, context and intent. (Para 95)
       (70) Constitution of India – Article 110 – Claise (1) – Expression “if it contains only provisions dealing with all or any of the following matters, namely...” – “If” indicates a condition only upon fulfilling of which the deeming fiction of a Bill being a Money Bill will arise – Further, “only provisions” means that the Bill shall not include anything outside sub-clauses (a) to (g) – Also, “namely” indicates that sub-clauses (a) to (g) are exhaustive of what a Money Bill may contain – Held, sub-clause (g) is not a residuary clause – Financial Bills [Article 117(1)] distinguished from Money Bill. (Para 95, 96)
       (71) Words and Phrases – Only – Word of exclusion and restriction – Indicates that a particular entry is exhaustive and is inapplicable to anything which falls outside its scope. (Para 97)
       (1991) Supp (2) SCC 608; (1993) Supp (3) SCC 97; (2017) 3 SCC 1 – Relied upon
       (72) Constitution of India – Article 110 – Money Bill – Aadhaar Act – Whether rightly introducrd as Money Bill – Act creating a platform for one pan-India and nationally acceptable identity, namely central database (CIDR) for storage of identity information collected from individuals – Article 110(1)(e) postulates that a Money Bill must deal with declaring of any expenditure to be expenditure charged on the Consolidated Fund of India – Section 7 of Aadhaar Act does not declare the expenditure incurred on services, benefits or subsidies to be a charge on the Consolidated Fund of India – It makes linkage of Aadhaar mandatory for services, benefits or subsidies which are already charged to the Consolidated Fund of India – It imposes a requirement of authentication and not declaring any expenditure to be a charge on the Consolidated Fund of India – Other provisions of the Act do not in any event fall within the ambit of Article 110(1) – Section 57 of the Act in particular (creating a platform for use of Aadhaar number by the private entities) cannot be covered under Article 110(1) – Held, provisions of Aadhaar Act are not “incidental” to any of the matters specified in subclauses (a) to (f) – Even assuming that Section 7 is relatable to Article 110(1)(e), other provisions of Aadhaar Act are unrelated to Article 110(1). (Para 107, 109)
       (73) Interpretation of Constitution – Principle of pith and substance – Invoked and applied when an enactment is challenged on ground of legislative competency – Under the doctrine, the law will be valid if in substance, it falls within a legislative entry on which the legislature is competent to enact a law – a
       1957 SCR 399; (2008) 13 SCC 5 – Relied upon
       (2002) 8 SCC 228 – Distinguished
       (74) Constitution of India – Article 110 – Passage of Aadhaar Act as a Money Bill by passing Rajya Sabha – Held, abuse of the constitutional process – Aadhaar Act passed in violation of Article 110 declared unconstitutional. (Para 116, 117)
       (75) Constitution of India – Article 21 – Privacy – Informational privacy and physical privacy – Collection of biometric data requires some infringement of the data subject’s personal space – Iris and fingerprint scanners require close proximity of biometric sensors to body parts such as eyes, hands and fingertips – Widespread usage of biometrics substantially undermines the right to remain anonymous. (Para 126, 127)
       (76) Aadhaar Act, 2016 – Privacy concerns – Section 3(2) mandating enrolling agency to inform the individual about use of information, with whom it will be shared and the individual’s rightb to access the information – Enrolment form in Schedule I of the Enrolment Regulations not offering any clarification – Consent of the individual – Section 2(I) – Consent for authentication – Regulations 5 (1) and 6(2) – Regulations not specifying clearly defined options ought to be made available to the Aadhaar number holder who do not wish to submit identity information – Nor do the regulations specify the procedure to be followed in case the Aadhaar number holder does not provide consent – Measures for providing alternatives must be defined in all identity systems. (Para 145, 146)
       (77) Aadhaar Act, 2016 – Sections 29(1) and 29(4) – Section 29(1) expressly prohibits sharing of core biometric information to anybody under ant circumstance – Section 29(4) grants UIDAI the power to publish, display or post core biometric information of an individual for purposes specified by the regulations – Could lead to transgressions and abuse of power – The two provisions creating distinction between core biometric information and identity information bothe of which are integral toindividual identity – Held, Identity information and core biometric information boteh require equal protection. (Para 148)
       (78) Sections 2(g), (j), and (k) – Provisions inclusive and expansive – Giving discretionary power to UIDAI to define the scope of biometric and demographic information. (Para 149)
       (79) Sections 6, Section 31(2) and Section 28(5) – Stability of biometric data is not absolute – Requirement of updating biometric information – Section 28(5) disallowsing an individual access to biometric information that forms the core of his or her unique ID – Denial of access to the individual violates a fundamental principle of data protection. (Para 150, 151, 152)
       (80) Regulations 11 (1) and (4) – Allowing biometric locking – Allows Aadhaar number holders to permanently lock their biometrics and temporarily unlock them only when needed for biometric authentication – The regulation also empowers UIDAI to make provisions to remove such locking without any specified grounds for doing so. (Para 152)
       (81) Duty of Court – To ensure that developments in technology are accompanied with legal and technical safeguards. (Para 154]
       (82) Privacy – Current privacy protections appropriate for the present state of technology cannot be assumed also to be sufficient in the future – “Do Not Harm” principle – Great care needs to be taken to prevent misuse of identity systems – Held, Aadhaar framework does not address the privacy concerns issues. (Para 155, 156, 157)
       (83) Constitution of India – Article 37 and 38 – Diretive principles – Under Article 37 State duty bound to apply while making laws – Article 38, 39, 41, 43, 47 oblige State to secure a social order for the promotion of the welfare of the people – Over time, values enshrined in Directive Principles have been read into guarantees of freedom in Part III – Adopted as standards of reasonableness to expand the meaning and ambit of the fundamental rights – Enforcing and implementing a robust platform for identification of beneficiaries must ensure that social welfare benefits reach the eligibile persons and are not captured by those for whom social welfare benefits are not designed – This constitutes legitimate object of state policy – Reaching out to the targeted population is a valid constitutional purpose. (Para 161, 162, 163, 176)
       (1980) 3 SCC 625 – Relied upon
       (84) Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 – Section 7 – Aadhaar platform not a social welfare benefit in itself – It is a platform for verification of identity principally on biometric information – As a measure of state policy, it seeks to bring about financial inclusion by providing a means of identification – Rationale being targeted delivery of services – There is a state interest in ensuring that the welfare benefits which the state provides reach those for whom they are intended. (Para 178)
       (85) Constitution of India – Article 266 r/w sections 3 and 7, Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 – Ensuring that resources reach the hands of those for whom they are meant – A legitimate State interest – Making Aadhaar mandatory for availing subsidies, benefits and services – In fulfilment of the doctrine of public trust. (Para 187)
       (2012) 10 SCC 1; (2012) 3 SCC 1; (2017) 4 SCC 269 – Relied upon
       (2014) 5 SCC 438 – Referred
       (86) Constitution of India – Part III – Fundamental rights – Balancing – Assertion of different fundamental rights and conflicts within the same fundamental right involves judicial balancing – Balancing between political freedoms and economic freedoms – Principle of ‘paramount public interest’. (Para 196)
       (2003) 4 SCC 399; (2013) 16 SCC 82; (2013) 6 SCC 620; (2017) 4 SCC 397 – Relied upon
       (87) Interpretation of statute – Validity – Proportionality test – Proportionality, a tool to determine whether a legislative measure is disproportionate in its interference with the fundamental right – Regard should be had to whether a less intrusive measure could have been adopted – And whether the impact of encroachment on a fundamental right is disproportionate to the benefit which is likely to ensue – Proportionality standard must be met by both procedural and substantive aspects of the law – The law interfering with fundamental rights must be in pursuance of a legitimate state aim – There should be rational connection between those measures, the situation in fact and the object sought to be achieved – Measures must be necessary – Restrictions must not only serve a legitimate purposes; they must also be necessary to protect them – State must provide sufficient safeguards relating to the storing and protection of centrally stored data. (Para 204, 218)
       1950 SCR 759; 1952 SCR 597; (2017) 10 SCC 1 – Relied upon
       (2001) 2 SCC 386; (1969) 3 SCC 337; (1969) 1 SCC 853; (1982) 1 SCC 39; (2004) 2 SCC 130; (2016) 7 SCC 353 – Referred
        [1999] 1 AC 69; [2007] UKHL 11; (1983) 65 BVerfGE 1; (2008) 48 EHRR 1169; Application no. 8806/12; [C-293/12 and C-594/12]; [2013] EUECJ C-291/12; [2016] UKPC 30; 515 U.S. 646 (1995); 489 U.S. 602 (1989); 429 U.S. 589 (1977); 410 U.S. 1 (1973); 476 U.S. 693 (1986); 194 F.3d 954 (9th Cir. 1999); 669 F.3d 1049 (9th Cir. 2012); 664 F. Supp. 136 (S.D.N.Y. 1987); 785 F.2d 1354 (6th Cir. 1986); 306 F. Supp. 1002 (S.D.N.Y. 1969); (1986) 42 Cal. 3d 185; N.Y.S.2d 865; 10 Cal. App.3d 582 (1970); 55 F.2d 67 (2d Cir. 1932); 399 F. Supp. 133 (M.D.N.C. 1975) – Distinguished
       (88) Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 – Validity – Proportionality test – Objective of transferring subsidies and entitlements to its citizens – Aim – To curb leakages and to increase transparent and efficient “targeted delivery of subsidies, benefits and services” – Act surpassing a tailored objective and seeking to administer every facet of the citizen-state engagement through mandatory biometric-enabled Aadhaar linking – Correctness of documents submitted for enrolment not verified by anybody – UIDAI not taking institutional responsibility for correctness of information entering its database – It only matches stored data at time of authentication – Verification depending on self declaration – Exception handling process permitting use of alternative modes of identification if the Aadhaar authentication fails, also left to discretion of Requesting Entity – Regulation 14(i), Aadhaar (Authentication) Regulations 2016 – 49000 enrolment operators blacklisted by UIDAI – Requesting entities not legally allowed to store biometrics captured for Aadhaar authentication under Regulation 17(1)(a) – However, requesting entities can hold identity information for a temporary period, Regulation 17(1)(c) – Regulation 9 – Retention of data for two years and further archived period of five years – Regulations 20(2) and 20(3) – Regulation 27 permitting UIDAI to retain data for six months except purpose of authentication – Section 32(3) – Surveillance of individuals – It is possible through the UIDAI database to track the location of an individual – Verification logs are capable of profiling an individual – Threat to privacy arises from the ability of third parties to access positive identification and link it to other information, resulting in secondary use of that information without the consent of the data subject – Protection of data of 1.2 billion citizens, question of national security, cannot be indemnified by a Contract between UIDAI and LI Solutions, the system provider – MoU between UIDAI and Registrars, not being a contract under Artiucle 299 of the Constitution, not covering acts done by private entities engaged by Registrars – Act entrusts UIDAI with a wide range of administrative and adjudicatory functions – UIDAI responsible for management and securing central database of identity information of individuals as also confidentiality of the data – Under section 28(5) proviso the individual has nboi right of access to his data – Making UIDAI, administering a project, also responsible for providing grievance handling mechanism u/s 23(2)(s) severely compromises independence of the grievance redressal body – Absence of regulatory framework leaves the law vulnerable to challenge – Absence of guiding principles for oversight mechanism such as principle of data minimization – Biometric data collected under the Act must not violate autonomy of an individual – Section 57 suffers from over breadth and manifest arbitrariness – Linking Aadhaar with different databases, when profiled into a system, could be used for commercial purposes – It can also influence behavioural patterns of individuals, by affecting their privacy and liberty – If traces of Aadhaar number are left in every facet of human life, it will lead to a loss of privacy – Aadhaar suffers from vice of being overbroad – Section 7 does not require determination of necessity of Aadhaar in each case and whether a less intrusive modality should suffice – Pension being a tright and not subsidy, linking of pensionary payments to Aadhaar held junfair and arbitrary – Inclusion of benefits and services in Section 7, held, suffers from a patent ambiguity – Violative of Article 14, Constitution of India. (Para 222, 223, 224, 225, 226, 227, 230, 231, 232, 234, 235, 236, 238, 240, 242, 244, 245, 247)
       (2017) 10 SCC 1; (2012) 11 SCC 1 – Relied upon
       (89) Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 – Sections 3(1), Section 4(3), Section 7(1) – Liberty and identity – Reducing a person to a number – These provisions cannot be allowed to displace constitutional identities – Section 2(k) defines demographic information excluding race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history – However, linking of the Aadhaar number to different databases is capable of profiling an individual, which could include information regarding her/his race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history – Exclusion of targeted beneficiaries from welfare schemes due to technical errors in Aadhaar – It was for the State to demonstrate that the right to food and other entitlements provided through the Aadhaar scheme could not have been secured without violating fundamental rights of privacy and dignity – Invasion of privacy has to be proportional to and carefully tailored for achieving a legitimate aim – Held, measures under Aadhaar failed to satisfy the test of necessity and proportionality. (Para 251, 252, 253, 254, 255)
       (1978) 1 SCC 248; (1997) 6 SCC 241; (1999) 2 SCC 228; (2008) 3 SCC 1; (2014) 5 SCC 438; (1996) 5 SCC 125; (2011) 7 SCC 547; (2017) 10 SCC 1 – Relied upon
       (90) Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 – Section 7 r/w Part III, Constitution of India – Dignity is an integral element of natural law and an inalienable constitutional construct – To lead a dignified life is a constitutional assurance to an individual – Any State action forcing an individual to part with her or his dignity or any other right under Part III will not be permissible – Section 7 making it mandatory for an individual to undergo authentication or furnish proof of possession of Aadhaar number in order to avail a subsidy, benefit or service, which incurs expenditure from the Consolidated Fund of India – In case of failure subsidy, benefit or service are denied – Exclusion based on technological errors, with no fault of the individual, is a violation of dignity – No failure rate in providing social welfare benefits can be acceptable – Dignity and rights of individuals cannot be based on algorithms or probabilities – Constitutional guarantees cannot be subject to the vicissitudes of technology. (Para 256, 258, 262, 263, 269)
       (2017) 10 SCC 1 – Relied upon
       (91) Income Tax Act 1961 – Section 139AA – Validity – Section 139AA making seeding of the Aadhaar number with the PAN card mandatory – That, object of the measure in Section 139AA constitutes a legitimate state aim, affirmed – However, validity of section 139AA is dependent upon and cannot be segregated from the validity of the parent Aadhaar legislation. (Para 278)
       (2017) 9 SCC 1; (1981) 1 SCC 722; (1996) 2 SCC 226; (1974) 4 SCC 3; (2017) 10 SCC 1 – Relied upon
       (1998) 2 SCC 1; (2004) 4 SCC 311; (2011) 8 SCC 737; (2011) 9 SCC 286; (2011) 9 SCC 1; (2017) 7 SCC 59; (1996) 3 SCC 709; (2012) 6 SCC 312; (2016) 2 SCC 445 – Referred
       (92) Linkage of mobile SIM with Aadhaar – While asserting the need for proper verification, Sate cannot disregard countervailing requirements of preserving integrity of biometric data and the privacy of mobile phone subscribers – The decision to link Aadhaar numbers to SIM cards and to enforce a regime of e-KYC authentication invalidated. (Para 283, 285)
       (2012) 5 SCC 275; (2017) 7 SCC 155 – Referred
       (93) Prevention of Money-Laundering (Maintenance of Records) Rules 2005 – Rule 9 – Beneficial owner u/s 9(3) required u/s 9(4) to submit an Aadhaar number – Rule 9(4) mandates that in the case of an individual, eligible to be enrolled for an Aadhaar number, the Aadhaar number mut be submitted – Where an Aadhaar number has not been assigned, proof of an application for enrolment is required to be submitted – Instead of furnishing an option to submit one of six OVDs, submission of Aadhaar number alone is mandated –Section 12, PMLA requiring reporting entity to verify identity of their clients and beneficial owners and maintain records – Rule 17(c) mandating that in case of failure of the client to submit Aadhaar number and PAN within stipuoated period, his account shall become inopertaional – Consequences of the non-submission of an Aadhaar number held draconian – Treating every account holder with a highly intrusive norm suffers from manifest arbitrariness – Imposing a uniform requirement of linking Aadhaar numbers with all account based relationships is disproportionate and excessive . (Para 289, 295, 296)
       (2006) 3 SCC 434; (2007) 13 SCC 673 – Relied upon
       (94) Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 – Section 59 – Savings – A validating provision – Validating actions of Central Government only prior to enactment of the Act – Not of State governments or private entities – Fundamental rights can be encroached only by a valid law – First two enrolment forms used by UIDAI, under which around 90 crore enrolments were done, had no mention of informed consent – Such enrolments cannot be termed voluntary – The law besides being valid should provide safeguards – Prior to the Act, there was no valid law and no safeguards – Section 59 cannot, by a deeming fiction, extend the safeguards provided under the Act to the enrolments done earlier – Article 20(1), Constitution of India – Application of criminal provisions of the Act cannot be extended to the period prior to the enactment of the Aadhaar Act. (Para 302, 304)
       AIR 1967 SC 1170 – Referred
       (95) Information Technology Act 2000 (Information Technology (Amendment) Act, 2008) – Section 43A – Provision for protection of “sensitive personal data or information” as defined in Rule 3 of the Information Technology (Reasonable Security Practices and Procedures and Sensitive Personal Data or Information) Rules, 2011 – Provision for compensation for failure to protect data – Section 66C provides for punishment for identity theft – Section 66E provides for punishment for the violation of the privacy of an individual – Section 72A provides for punishment for disclosure of information in breach of a lawful contract – Section 43A applies only to bodies corporate and has no application to government or to its departments – Personal information leaked or lost by government agencies will not be covered under Section 43A – Act does not penalise unauthorised access to the Central Identities Data Repository – No comprehensive safeguards governing biometric data prior to Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 – Absence of a legislative framework for the Aadhaar project between 2009 and 2016 – 2009 notification not authorising collection of biometric data – Collection of biometric data during 2009-2016 being not covered by 2009 notification (not issued under any statute), held, not saved by Section 59 – In absence of a legal fiction in Section 59 Aadhaar Act, the Act does not come in force on the date on which the actions, which this Section seeks to validate, were taken – Section 59 fails to cure the cause of invalidity prior to the enactment of the Aadhaar Act. (Para 306, 309, 317, 319, 321)
       (96) Validating law – Essentially removes the deficiency found to exist in the earlier enactment – By curing the defect, it validates actions taken under a previous enactment – Legislature has the power to validate actions under an earlier law by removing its infirmities – In case of State laws being declared invalid for want of legislative competence, Parliament could enact a fresh law with retrospective effect and protect actions taken under the state law – Where a law suffers from a defect or has been invalidated, it is open to the legislature to remove the defect – It is not enough for the validating law to state that the grounds of invalidity of the earlier law are deemed to have been removed – The validating law must remove the deficiencies. (Para 310, 311, 316, 317)
       (1963) 2 SCR 747; (1969) 1 SCC 248; (1972) 2 SCC 239; (1966) 1 SCR 523; (1974) 4 SCC 827; (1966) 1 SCR 523; (1974) 4 SCC 827; (1975) 2 SCC 302; (1966) 2 SCR 158; (2017) 3 SCC 362; (2014) 4 SCC 583; (1969) 2 SCC 283 – Relied upon
       (97) Deeming fiction – A deeming fiction cannot travel beyond what was originally intended. (Para 320)

Judgement Key Points

The Aadhaar Act is constitutionally valid and does not create a surveillance state, as the architecture ensures minimal data collection, strong encryption, and safeguards against profiling or misuse. (!) (!) (!)
Right to privacy under Articles 14, 19, and 21 is not violated by the Aadhaar scheme; it passes the proportionality test with legitimate state aim of targeted welfare delivery, rational connection, necessity, and fair balance. (!) (!) (!)
Section 7 is valid, restricting mandatory Aadhaar to subsidies, benefits, and services funded from the Consolidated Fund of India, aimed at preventing leakages without disproportionate exclusion. (!) (!) (!)
For children, parental/guardian consent is required for enrolment; they can opt out upon majority; school admissions and Sarva Shiksha Abhiyan benefits (ages 6-14) cannot mandate Aadhaar, as it violates Article 21A. (!) (!)
Regulation 27(1) struck down beyond 6 months retention; Regulation 26 requires amendment to limit metadata; authentication records cannot exceed 6 months unless court-ordered. (!) (!)
Section 33(1) read down to include hearing for affected individual; Section 33(2) struck down, with liberty to re-enact involving higher officer and judicial oversight for national security disclosures. (!) (!)
Section 57 partly unconstitutional: portion allowing body corporate/individuals authentication via contract struck down; use limited to law-backed purposes under Sections 7/8 and Chapter VI. (!) (!)
Aadhaar Act validly enacted as Money Bill under Article 110, with Section 7 as core provision; others incidental; Speaker's certification subject to judicial review for constitutional violation. (!) (!)
Section 139AA (Income Tax Act) constitutional, satisfying privacy proportionality; aids de-duplication, tax evasion prevention without arbitrariness. (!) (!)
PMLA Rule 9 amendments and DoT mobile linking circular unconstitutional: disproportionate, lacking proportionality, violating privacy; bank/mobile Aadhaar linking struck down. (!) (!) (!)

JUDGMENT :

A.K. Sikri, J.

(For Chief Justice, himself and A.M. Khanwilkar, J.)

Introduction and Preliminaries:

It is better to be unique than the best. Because, being the best makes you the number one, but being unique makes you the only one.

2. ‘Unique makes you the only one’ is the central message of Aadhaar, which is on the altar facing constitutional challenge in these petitions. ‘Aadhaar’ which means, in English, ‘foundation’ or ‘base’, has become the most talked about expression in recent years, not only in India but in many other countries and international bodies. A word from Hindi dictionary has assumed secondary significance. Today, mention of the word ‘Aadhaar’ would not lead a listener to the dictionary meaning of this word. Instead, every person on the very mentioning of this word ‘Aadhaar’ would associate it with the card that is issued to a person from where he/she can be identified. It is described as an ‘Unique Identity’ and the authority which enrols a person and at whose behest the Aadhaar Card is issued is known as Unique Identification Authority of India (hereinafter referred to as ‘UIDAI’ or ‘Authority’). It is described as unique for various reasons. UIDAI claims that not only it is a foolproof method of identifying a person, it is also an instrument whereby a person can enter into any transaction without needing any other document in support. It has become a symbol of digital economy and has enabled multiple avenues for a common man. Aadhaar scheme, which was conceptualised in the year 2006 and launched in the year 2009 with the creation of UIDAI, has secured the enrolment of almost 1.1 billion people in this country. Its use is spreading like wildfire, which is the result of robust and aggressive campaigning done by the Government, governmental agencies and other such bodies. In this way it has virtually become a household symbol. The Government boasts of multiple benefits of Aadhaar.

3. At the same time, the very scheme of Aadhaar and the architecture built thereupon has received scathing criticism from a section of the society. According to them, Aadhaar is a serious invasion into the right to privacy of persons and it has the tendency to lead to a surveillance state where each individual can be kept under surveillance by creating his/her life profile and movement as well on his/her use of Aadhaar. There has been no other subject matter in recent past which has evoked the kind of intensive and heated debate wherein both sides, for and against, argue so passionately in support of their respective conviction. The petitioners in these petitions belong to the latter category who apprehend the totalitarian state if Aadhaar project is allowed to continue. They are demanding scrapping and demolition of the entire Aadhaar structure which, according to them, is anathema to the democratic principles and rule of law, which is the bedrock of the Indian Constitution. The petitioners have challenged the Aadhaar project which took off by way of administrative action in the year 2009. Even after Aadhaar got a shield of statutory cover, challenge persists as the very enactment known as Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (hereinafter referred to as the ‘Aadhaar Act’) is challenged as constitutionally impermissible. The wide range of issues involved in this case is evident from the fact that it took almost four months for the parties to finish their arguments in these cases, and the Court witnessed highly skilled, suave, brilliant and intellectual advocacy, with the traces of passions as well.

4. The issue has generated heated public debate as well. Even outside the Court, there are groups advocating in favour of the Aadhaar scheme and those who are stoutly opposing the same. Interestingly, it is not only the commoners who belong to either of the two groups but in

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2018 Supreme(SC) 947

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