R. Ramakumar, August 12, 2015

The judgement of the Supreme Court on Aadhaar on Tuesday is important in many ways. First, it does bring an end to one stage of the long legal struggle to ensure that citizen’s rights and liberties are protected in the midst of technocratic developmental interventions of the government. Secondly, it shifts a very important dimension of the case – privacy – to a higher legal level. The court has referred the question of whether privacy is a fundamental right to a larger constitutional bench, which would, it is expected, bring a closure on the matter. In this note, I will try to explain two aspects of Tuesday’s judgement: on privacy; and on the enforced compulsoriness of Aadhaar.

First, on privacy and constitutional rights. 

The government’s argument in the Supreme Court that privacy is not a fundamental right under Article 21 was based on judgements by larger benches in two earlier cases: (1) M.P. Sharma & Others v. Satish Chandra & Others, 1954 and (2) Kharak Singh v. State of U.P. & Others, 1963. Opposing the government’s view, the petitioners argued that in other cases that followed these two cases {such as Gobind v. State of M.P. & Another (1975); R. Rajagopal & Another v. State of Tamil Nadu & Others (1994); and PUCL v. Union of India & Another (1997)}, Supreme Court benches have ruled that the right to privacy is indeed a fundamental right ingrained in Article 21, which provides right to liberty to Indian citizens.

Image Courtesy: commons.wikimedia.org

In a major statement, the current bench has written that: “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.” In other words, the bench has clearly ruled that if privacy is not a fundamental right under Article 21, then Article 21 itself stands completely “denuded of vigour and vitality”. This is a very important gain from the judgement.

Having said that, however, the bench has still thought it fit to refer the petitions to a larger constitutional bench. This is only because it thought that because M. P. Sharma and Kharak Singh were ruled by larger benches of 6 and 8 judges, and the rest by smaller benches, “institutional integrity and judicial discipline” are best served by such a referral. Now, it is over to the constitutional bench to settle the matter.

What has been referred to the constitutional bench? It is the ‘ratio decidendi’ in the M. P. Sharma and Kharak Singh cases. ‘Ratio decidendi’ typically means “the point in a case which determines the judgment”. For the petitioners, counsels Gopal Subramoniam, Shyam Divan and Meenakshi Arora had argued that the judgements in both these cases (that privacy is not a “fundamental” right, though still a right) were not part of the ‘ratio decidendi’ of those cases and, therefore, do not bind the decisions of subsequent smaller benches. This is what the larger constitutional bench will now rule on.

Second, on Aadhaar and whether it is mandatory. 

Aadhaar, for the last two to three years, has been a major source of harassment for Indian citizens, particularly the poor. In the provision of a large number of social services, the government and its arms have been insisting on the production of Aadhaar number. In a dubious manner, and in gross violation of earlier Supreme Court orders, various arms of the central and State governments have been insisting on Aadhaar for scholarships for Dalit and Adivasi students, pension disbursements, school attendance, salary disbursement, marriage registration, property registration, driving licenses, LPG connections, PDS purchases, provident fund transactions and so on. Fearing denial of services, many citizens have gone ahead and enrolled for Aadhaar even though they did not want to. Audaciously, the government actually presented the case of such higher number of Aadhaar enrolments to the Supreme Court as an example of citizens being in agreement with the scheme!

The Supreme Court has effectively, though temporarily, put an end to this harassment. The bench has also ruled that Aadhaar can not be made mandatory till the larger constitutional bench takes a call on the matter. Four explicit instructions are given to the government. They


  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.”

Note the point here: Aadhaar, even in a non-mandatory format, can only be demanded by government arms for PDS, LPG and kerosene, and nothing else. In other words, it can not even be “used” or demanded in a non-mandatory format for any other service. The implication is indeed that the government has to immediately release orders to stop the seeding of Aadhaar numbers in the databases of its multiple social service provision agencies. In particular, it has to swiftly and sternly pass on such an advise to the Election Commission of India to stop the seeding of the voter’s list with Aadhaar numbers. This is the second important takeaway from the Tuesday judgement.

What is also required now is a strong citizen’s monitoring movement to ensure that the orders of the Supreme Court are adhered to by the governments. No agency, private or public, should be allowed to demand the Aadhaar number from citizens on any count, and any denial of service has to be immediately resisted.