caselaws
Supreme Court of India
Justice K.S.Puttaswamy(Retd)& … vs Union Of India & Ors on 11 August, 2015Author: ………….…………………..J.
Bench: J. Chelameswar, S.A. Bobde, C. Nagappan
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.494 OF 2012
Justice K.S. Puttaswamy (Retd.) & Another … Petitioners
Versus
Union 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
1. In this batch of matters, a scheme propounded by the Government of
India popularly known as “Aadhaar Card Scheme” is under attack on various
counts. For the purpose of this order, it is not necessary for us to go
into the details of the nature of the scheme and the various counts on
which the scheme is attacked. Suffice it to say that under the said scheme
the Government of India is collecting and compiling both the demographic
and biometric data of the residents of this country to be used for various
purposes, the details of which are not relevant at present.
2. One of the grounds of attack on the scheme is that the very
collection of such biometric data is violative of the “right to privacy”.
Some of the petitioners assert that the right to privacy is implied under
Article 21 of the Constitution of India while other petitioners assert that
such a right emanates not only from Article 21 but also from various other
articles embodying the fundamental rights guaranteed under Part-III of the
Constitution of India.
3. When the matter was taken up for hearing, Shri Mukul Rohatgi, learned
Attorney General made a submission that in view of the judgments of this
Court in M.P. Sharma & Others v. Satish Chandra & Others, AIR 1954 SC 300
and Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, (decided by
Eight and Six Judges respectively) the legal position regarding the
existence of the fundamental right to privacy is doubtful. Further, the
learned Attorney General also submitted that in a catena of decisions of
this Court rendered subsequently, this Court referred to “right to
privacy”, contrary to the judgments in the abovementioned cases which
resulted in a jurisprudentially impermissible divergence of judicial
opinions.
“A power of search and seizure is in any system of jurisprudence an
overriding power of the State for the protection of social security and
that power is necessarily regulated by law. When the Constitution makers
have thought fit not to subject such regulation to constitutional
limitations by recognition of a fundamental right to privacy, analogous to
the American Fourth Amendment, we have no justification to import it, into
a totally different fundamental right, by some process of strained
construction. [See: M.P. Singh & Others v. Satish Chandra & Others, AIR
1954 SC 300, page 306 para 18]
“… Nor do we consider that Art. 21 has any relevance in the context as was
sought to be suggested by learned counsel for the petitioner. As already
pointed out, the right of privacy is not a guaranteed right under our
Constitution and therefore the attempt to ascertain the movement of an
individual which is merely a manner in which privacy is invaded is not an
infringement of a fundamental right guaranteed by Part III.” [See: Kharak
Singh v. State of U.P. & Others, AIR 1963 SC 1295, page 1303 para 20]
[Emphasis supplied]
4. Learned Attorney General submitted that such impermissible divergence
of opinion commenced with the judgment of this Court in Gobind v. State of
M.P. & Another, (1975) 2 SCC 148, which formed the basis for the subsequent
decision of this Court wherein the “right to privacy” is asserted or at
least referred to. The most important of such cases are R. Rajagopal &
Another v. State of Tamil Nadu & Others, (1994) 6 SCC 632 (popularly known
as 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 Benches
of two or three Judges.
6. Shri K.K. Venugopal, learned senior counsel appearing for one of the
respondents submitted that the decision of this Court in Gobind (supra) is
not consistent with the decisions of this Court in M.P. Sharma and Kharak
Singh. He submitted that such divergence is also noticed by the
academicians, Shri F.S. Nariman, Senior Advocate of this Court and Shri
A.M. Bhattacharjee[1], Former Chief Justice, High Court at Calcutta and
High Court at Bombay.
7. Therefore, it is submitted by the learned Attorney General and Shri
Venugopal that to settle the legal position, this batch of matters is
required to be heard by a larger Bench of this Court as these matters throw
up for debate important questions – (i) whether there is any “right to
privacy” 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 no
express provision in the Constitution adumbrating the right to privacy. It
is therefore submitted that these batch of matters are required to be heard
and decided by a larger bench of at least five Judges in view of the
mandate contained under Article 145(3)[2] of the Constitution of India.
8. On behalf of the petitioners Shri Gopal Subramanium and Shri Shyam
Divan, learned senior counsel very vehemently opposed the suggestion that
this batch of matters is required to be heard by a larger bench. According
to them:
(i) The conclusions recorded by this Court in R. Rajagopal and PUCL are
legally tenable for the reason that the observations made in M.P. Sharma
regarding the absence of right to privacy under our Constitution are not
part of ratio decidendi of that case and, therefore, do not bind the
subsequent smaller Benches.
(ii) Coming to the case of Kharak Singh, majority in Kharak Singh did hold
that the right of a person not to be disturbed at his residence by the
State and its officers is recognized to be a part of a fundamental right
guaranteed under Article 21 which is nothing but an aspect of privacy. The
observation in para 20 of the majority judgment at best can be construed
only to mean that there is no fundamental right of privacy against the
State’s authority to keep surveillance on the activities of a person. Even
such a conclusion cannot be good law any more in view of the express
declaration made by a seven-Judge bench decision of this Court in Maneka
Gandhi 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 based
on the principles expounded in A.K. Gopalan v. State of Madras, AIR 1950 SC
27. Such principles propounded by A.K. Gopalan themselves came to be
declared 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 the
instant batch of matters to be heard by a larger Bench.
9. It is true that Gobind (supra) did not make a clear declaration that
there is a right to privacy flowing from any of the fundamental rights
guaranteed under Part-III of the Constitution of India, but observed that
“Therefore, even assuming that the right to personal liberty, the right to
move freely throughout the territory of India and the freedom of speech
create an independent right of privacy as an emanation from them which one
can characterize as a fundamental right, we do not think that the right is
absolute”. 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 to
privacy” is implicit under Article 21 of the Constitution, PUCL’s case held
that the “right to privacy” insofar as it pertains to speech is part of
fundamental rights under Articles 19(1)(a) and 21 of the Constitution[5].
11. Elaborate submissions are made at the bar by the learned counsel for
the petitioners to demonstrate that world over in all the countries where
Anglo-Saxon jurisprudence is followed, ‘privacy’ is recognised as an
important aspect of the liberty of human beings. It is further submitted
that it is too late in the day for the Union of India to argue that the
Constitution of India does not recognise privacy as an aspect of the
liberty under Article 21 of the Constitution of India. At least to the
extent that the right of a person to be secure in his house and not to be
disturbed unreasonably by the State or its officers is expressly recognized
and protected in Kharak Singh (supra) though the majority did not describe
that aspect of the liberty as a right of privacy, it is nothing but the
right of privacy.
12. We are of the opinion that the cases on hand raise far reaching
questions of importance involving interpretation of the Constitution.
What is at stake is the amplitude of the fundamental rights including that
precious and inalienable right under Article 21. If the observations made
in M.P. Sharma (supra) and Kharak Singh (supra) are to be read literally
and accepted as the law of this country, the fundamental rights guaranteed
under the Constitution of India and more particularly right to liberty
under Article 21 would be denuded of vigour and vitality. At the same
time, we are also of the opinion that the institutional integrity and
judicial discipline require that pronouncement made by larger Benches of
this Court cannot be ignored by the smaller Benches without appropriately
explaining the reasons for not following the pronouncements made by such
larger Benches. With due respect to all the learned Judges who rendered
the subsequent judgments – where right to privacy is asserted or referred
to their Lordships concern for the liberty of human beings, we are of the
humble opinion that there appears to be certain amount of apparent
unresolved contradiction in the law declared by this Court.
13. Therefore, in our opinion to give a quietus to the kind of
controversy raised in this batch of cases once for all, it is better that
the ratio decidendi of M.P. Sharma (supra) and Kharak Singh (supra) is
scrutinized and the jurisprudential correctness of the subsequent decisions
of this Court where the right to privacy is either asserted or referred be
examined and authoritatively decided by a Bench of appropriate strength.
14. We, therefore, direct the Registry to place these matters before the
Hon’ble the Chief Justice of India for appropriate orders.
………….…………………..J.
(J. Chelameswar)
………….…………………..J.
(S.A. Bobde)
………….…………………..J.
(C. Nagappan)
New Delhi
August 11, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.494 OF 2012
Justice K.S. Puttaswamy (Retd.) & Another … Petitioners
Versus
Union 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
-2-
O R D E R
Having regard to importance of the matter, it is desirable that the
matter be heard at the earliest.
………….…………………..J.
(J. Chelameswar)
………….…………………..J.
(S.A. Bobde)
………….…………………..J.
(C. Nagappan)
New Delhi
August 11, 2015
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.494 OF 2012
Justice K.S. Puttaswamy (Retd.) & Another … Petitioners
Versus
Union 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, the
learned counsel for the petitioners prayed for further interim orders. The
last interim order in force is the order of this Court dated 23.9.2013
which reads as follows:-
“….
All the matters require to be heard finally. List all matters
for final hearing after the Constitution Bench is over.
In the meanwhile, no person should suffer for not getting the
Aadhaar card inspite of the fact that some authority had issued a circular
making it mandatory and when any person applies to get the Aadhaar card
voluntarily, it may be checked whether that person is entitled for it under
the law and it should not be given to any illegal immigrant.”
It was submitted by Shri Shyam Divan, learned counsel for the
petitioners that the petitioners having pointed out a serious breach of
privacy in their submissions, preceding the reference, this Court may grant
an injunction restraining the authorities from proceeding further in the
matter of obtaining biometrics etc. for an Aadhaar card. Shri Shyam Divan
submitted that the biometric information of an individual can be circulated
to other authorities or corporate bodies which, in turn can be used by them
for commercial exploitation and, therefore, must be stopped.
The learned Attorney General pointed out, on the other hand, that
this Court has at no point of time, even while making the interim order
dated 23.9.2013 granted an injunction restraining the Unique Identification
Authority of India from going ahead and obtaining biometric or other
information from a citizen for the purpose of a Unique Identification
Number, better known as “Aadhaar card”. It was further submitted that the
respondents have gone ahead with the project and have issued Aadhaar cards
to about 90% of the population. Also that a large amount of money has been
spent by the Union Government on this project for issuing Aadhaar cards and
that in the circumstances, none of the well-known consideration for grant
of injunction are in favour of the petitioners.
The learned Attorney General stated that the respondents do not share
any personal information of an Aadhaar card holder through biometrics or
otherwise with any other person or authority. This statement allays the
apprehension for now, that there is a widespread breach of privacy of those
to whom an Aadhaar card has been issued. It was further contended on
behalf of the petitioners that there still is breach of privacy. This is a
matter which need not be gone into further at this stage.
The learned Attorney General has further submitted that the Aadhaar
card is of great benefit since it ensures an effective implementation of
several social benefit schemes of the Government like MGNREGA, the
distribution of food, ration and kerosene through PDS system and grant of
subsidies in the distribution of LPG. It was, therefore, submitted that
restraining the respondents from issuing further Aadhaar cards or fully
utilising the existing Aadhaar cards for the social schemes of the
Government should be allowed.
The learned Attorney General further stated that the respondent Union
of India would ensure that Aadhaar cards would only be issued on a
consensual basis after informing the public at large about the fact that
the preparation of Aadhaar card involving the parting of biometric
information of the individual, which shall however not be used for any
purpose other than a social benefit schemes.
Having considered the matter, we are of the view that the balance of
interest would be best served, till the matter is finally decided by a
larger Bench if the Union of India or the UIDA proceed in the following
manner:-
1. The Union of India shall give wide publicity in the electronic and
print media including radio and television networks that it is not
mandatory for a citizen to obtain an Aadhaar card;
2. The production of an Aadhaar card will not be condition for obtaining
any benefits otherwise due to a citizen;
3. The Unique Identification Number or the Aadhaar card will not be used
by the respondents for any purpose other than the PDS Scheme and in
particular for the purpose of distribution of foodgrains, etc. and cooking
fuel, such as kerosene. The Aadhaar card may also be used for the purpose
of the LPG Distribution Scheme;
4. The information about an individual obtained by the Unique
Identification Authority of India while issuing an Aadhaar card shall not
be used for any other purpose, save as above, except as may be directed by
a Court for the purpose of criminal investigation.
Ordered accordingly.
………….…………………..J.
(J. Chelameswar)
………….…………………..J.
(S.A.
Bobde)
………….…………………..J.
(C.
Nagappan)
New Delhi
August 11, 2015
———————–
[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.”
———————–
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