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Right to Privacy Judgment
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What is Privacy?
Privacy is the ability to safeguard certain aspects of your existence by protecting your personal information. Such information could exist in the digital world, the physical world, or both. Privacy could include protection of your identity, data, personal space, bodily integrity and reputation, among others. -
Why is privacy important?
Lack of privacy safeguards can hinder the rightful exercise of right to freedom of speech and expression and the right to freedom of association in a democratic setting as the absence of such safeguards makes it easier to find and curb dissenting voices. Various categories of people could be vulnerable to this including critics of government policy and action, or journalists who report on government policy and action as well as the sources of information for those journalists. Surveillance and intrusion of privacy could have a chilling effect with people being hesitant to read, discuss and express opinion on topics that are considered controversial.
Unchecked violations of privacy by corporations are also harmful. A transfer or leak of your private information could occur from a corporation to someone with nefarious intentions. Such a person could directly use that information to your detriment or could leak that information to the public domain. This could then potentially lead to identity theft, financial loss, or harassment in the digital and / or the real world. -
Does India have a constitutionally guaranteed right to privacy?
The Constitution of India does not explicitly guarantee a fundamental right to privacy. However, various judicial bodies, including the Supreme Court of India, have, over the time, interpreted the existence of right to privacy as a part of various other fundamental rights, such as that of freedom of movement (Article 19(1)(d)), freedom of speech and expression (Article 19(1)(a)), and right to life and personal dignity (Article 21). Also, different aspects of an individual's privacy are safeguarded and considered as statutory rights through specific legislations. In its judgment delivered on 24th August, 2017 by a nine-Judge Constitution Bench, the apex court unanimously held that right to privacy is an intrisic part of right to life Article 21 and other freedoms guaranteed by Part III of the Contitution. -
How has the Supreme Court interpreted right to privacy over the years?
The judicial interpretation of right to privacy by the Supreme Court can be categorized into the following:- Search and Seizure: The earlier cases like M.P. Sharma & Ors. v. Satish Chandra [AIR 1954 SC 300], Kharak Singh v. State of Uttar Pradesh [AIR 1963 SC 1295], and Govind v. State of Madhya Pradesh [(1975) 2 SCC 148] used the defense of right to privacy with the issues of domiciliary visits by police personnel, under the broad theme of unreasonable search and seizure. These cases developed the concept of a person's right to privacy inside his house and free from unreasonable and arbitrary searches and seizures.
- Free Speech and Press: Right to privacy in the context of freedom of speech and freedom of press was discussed in the case of R. Rajagopal v. State of Tamil Nadu [1994 SCC (6) 632], famously known as the Auto Shankar case. This case upheld the right to be left alone as a tangent of right to privacy, thereby holding that freedom of the press cannot infringe on a person's right to privacy.
- Commercial Relationships: The Supreme Court decided on a case with respect to the right to privacy of a person in specific relationships that are commercial in nature and have a confidentiality clause. In the case of Mr. 'X' v. Hospital 'Z' [AIR 1999 SC 495], the commercial relations of a doctor and patient were discussed.
- Privacy of home/personal space: Right to privacy with respect to an individual's personal affairs within the four walls of his/her house was discussed in Suresh Koushal & Anr. v. Naz Foundation & Ors. [Civil Appeal No. 10972 of 2013]. This case became a landmark judgement as it sought to decriminalize consensual sexual activities among homosexual individuals and discussed a facet of right to privacy in that context.
- Communications surveillance: Right to privacy embarked in the technology dimension with the case of PUCL v. Union of India [AIR 1997 SC 568]. Through this case, the Supreme Court issued guidelines regarding communications surveillance performed under legal frameworks by the Government.
- Data collection: In the on-going litigation of Justice K. S. Puttaswamy and Ors. v. Union of India and Ors. [W.P.(C) 494/2012], the Supreme Court is deciding the validity of the biometric enabled Aadhaar scheme of the Government, and the underlying issues of data collection and right to privacy of individuals therewith.
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What is the K.S. Puttaswamy case about? Why was the question of privacy brought up in this case?
The petition in the case of Justice K.S. Puttaswamy & Ors. v. Union of India & Ors. [W.P.(C). No. 494/2012], was filed in the Supreme Court to challenge various aspects of the Aadhaar Card scheme and its mandatory nature. The petitioners asserted that the collection of biometric data for Aadhaar card is violative of the right to privacy, which is implied under Article 21 as well as various other articles embodying the fundamental rights guaranteed under Part-III of the Constitution of India.
The three-Judge Bench hearing the Puttaswamy case observed in its order dated 11th August, 2015 that the matter entailed questions of importance involving interpretation of the Constitution. Hence, it referred those substantial questions of law to a Constitutional Bench of appropriate strength. Thereafter, a five-Judge Bench was constituted to determine the Bench strength eligible to decide the question of right to privacy. In light of previous judgments on the issue of privacy, this five-Judge Bench referred the question of whether there is a fundamental right to privacy to a larger nine-Judge Constitution Bench on 18th July, 2017. -
Why was the question of right to privacy referred to the Constitution Bench in the Puttaswamy case?
Even though the Supreme Court in various contexts has upheld the existence of an implicit fundamental right to privacy of citizens, in the 1954 case of M.P. Sharma & Ors. v. Satish Chandra [AIR 1954 SC 300], an eight-Judge Bench held that it is not upon the Apex Court to construct a right to privacy 'through strained construction' from other sections of the Constitution. Moreover, in Kharak Singh v. State of Uttar Pradesh [AIR 1963 SC 1295] where the right to privacy was pitted against surveillance powers of the State, a six-Judge Bench ruled that privacy was not a guaranteed constitutional right. Due to the strength of the Benches that gave these decisions, these cases act as a precedent on right to privacy and stand undisputed until decided differently by a Bench of larger strength. Hence, to decide upon the issue, the three-Judge Bench in the Puttaswamy case referred this question to a larger Bench of appropriate strength. -
What was the ambit of the questions to be decided by the nine-Judge Bench? Was it also going to decide on the original Aadhaar matter?
The nine-Judge Bench was formed to examine only the limited issues of whether there is a fundamental right to privacy under the Indian Constitution and whether the judgments in M.P. Sharma and Kharak Singh were the correct expression of the constitutional position. It was not formed to decide on the Aadhaar issue. -
When and what did the nine-Judge Bench decide?
The nine-Judge Bench in the case of Justice K.S. Puttaswamy & Ors. v. Union of India & Ors. [W.P.(C). No. 494/2012] delivered its judgment on the issue of right to privacy on 24th August, 2017. It overruled the decisions in M.P. Sharma and Kharak Singh cases which said that the right to privacy is not protected by the Constitution. The court held that the right to Privacy is protected as an intrinsic part of Right to Life and Personal Liberty under article 21 and as a part of freedoms guaranteed by Part III of the Constitution.The Court further ruled that the decisions subsequent to Kharak Singh which have upheld right to privacy as a part of right to life and personal liberty under Article 21 lay down the correct position. -
What happens now that the judgment on right to privacy has been pronounced by the Supreme Court?
Since the decision of the nine-Judge Bench on right to privacy has been pronounced, the matter will now go back to the original Bench and then each matter would be heard separately on its merits.
Aadhaar - General
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Do I require Aadhaar for opening new bank accounts?
Yes. As specified under the Prevention of Money-laundering (Maintenance of Records) Second Amendment Rules, 2017, resident Indians are required to submit either their Aadhaar number or proof of application of enrolment (enrolment ID) for Aadhaar when opening new bank accounts. The Supreme Court (SC) in interim order dated 15.12.2017 issued in the matter of K.S. Puttaswamy v. Union of India clarified that customers who submitted only enrolment ID may take until March 31, 2018 to furnish their actual Aadhaar numbers.
Non-resident Indians (NRIs) and OCI Card holders on the other hand, are exempted from this requirement as they are not eligible to obtain Aadhaar, since Section 3 of the Aadhaar Act, 2016 makes residency a primary eligibility criterion. However, they are required to disclose their non-resident status with the proof to the bank. -
Do I need to give Aadhaar for the existing bank accounts?
Yes, Aadhaar based verification using eKYC process is necessary for existing bank accounts as per the Amemded PMLA Rules. According to the SC’s order in K.S. Puttaswamy, the last date for linking existing bank accounts with Aadhaar is March 31, 2018. Unless this deadline is further extended, resident Indian customers who fail to link their Aadhaar and bank accounts will have their accounts deactivated.
NRI customers and OCI card holders are again exempted from this requirement as they are ineligible to obtain Aadhaar subject to their disclosing their status to the banks. -
Is linking Aadhaar to my existing mobile connection mandatory?
Resident Indians: Re-verification through e-KYC procedure based on Aadhaar has been made mandatory in India. As per order dated 15.12.2017 issued by the Supreme Court of India in the case of K.S. Puttaswamy v. Union of India [W.P.(C) 494/2012], existing subscribers need not link their phone numbers to Aadhaar before March 31, 2018. Therefore, telcos cannot legally de-activate existing numbers until after the expiry of this deadline, and are liable for legal action if they do otherwise.
Non-Resident Indians: Non-Resident Indians have been provided an alternate method for re-verification vide Department of Telecommunications’ circular dated 01.12.2017 (See pages 7-10). This procedure can be performed by the NRI remotely through the internet. It is important to note that this alternate procedure is only applicable to NRIs that do not have an Aadhaar number or that have no mobile number registered with UIDAI for their Aadhaar number. Although the NRI does not need to be enrolled for Aadhaar under the procedure laid out in this circular, a ‘Trusted person’ who has an Aadhaar number needs to perform a verification that the NRI is known to them. A Trusted person can perform this verification for up to five people. The NRI would need to provide their demographic details, and information regarding their Passport and VISA. They would also be required to upload a copy of their passport and current VISA or Green Card or equivalent, and their latest coloured photograph.
Foreign Citizens Residing in India: Foreign nationals that do not have an Aadhaar number have been provided an alternate method for re-verification vide Department of Telecommunications’ circular dated 01.12.2017 (See pages 4-6). Foreign nationals, under this procedure, are required to be physically present in India. They would be required to provide their demographic details, and a copy of their passport and VISA / OCI Card. A ‘live photo’ of the Foreign national would be captured by the Telecom Service Provider (TSP) or the TSP’s representative.
For further details, please refer to our FAQ on this subject. -
Do I need Aadhaar for obtaining new mobile connection?
As per Department of Telecommunications circular dated 23.10.2017, eKYC through Aadhaar needs to be performed to obtain a new SIM. However, as Non-Resident Indians and Foreign Citizens have been provided alternate methods for re-verification, they do not require possession of an Aadhaar number in order to acquire a new SIM.
For further details, please see the answer to the previous question. -
I do not have a Permanent Account Number (PAN). Will I have to provide an Aadhaar to get one?
Yes, resident Indians except individuals of age of eighty years or above during the previous year or those residing in the States of Assam, Jammu and Kashmir and Meghalaya will have to provide Aadhaar while applying for a Permanent Account Number (PAN). As per Section 139AA of the Income Tax Act, 1961, inserted by the amendment vide the Finance Act, 2017, it is mandatory for individuals who are eligible to obtain Aadhaar to quote Aadhaar number in the application form for allotment of PAN from 1st July, 2017 onwards.
However, the non-resident Indians as well as the foreign citizens are exempted from the application of the above provision by a notification of the Ministry of Finance dated 11th May, 2017 [Notification No. 37/2017, F. No. 370133/6/2017-TPL]. Thus, they do not have to furnish Aadhaar to get a new PAN. -
Is linking of Aadhaar with PAN mandatory?
In case of resident Indians except individuals of age of eighty years or above during the previous year or those residing in the States of Assam, Jammu and Kashmir and Meghalaya, those individuals who have already enrolled themselves under Aadhaar scheme will have to link their Aadhaar with PAN before the stipulated deadline (31st March, 2018) post which their PAN will be deemed to be invalid as per Section 139AA(2) of the Income Tax Act, 1961.
However, as per the judgment delivered in Binoy Viswam v. Union of India & Ors. [AIR 2017 SC 2967], individuals who have not yet applied for Aadhaar and do not comply with the above-mentioned provision, their PAN will not be treated as invalid for the time being.
Non-resident Indians and foreign citizens are exempted from this requirement as per the notification of Ministry of Finance mentioned in the previous question. -
Can I file my Income Tax Returns in India without furnishing Aadhaar?
Section 139AA of Income Tax Act, 1961 makes it mandatory for the resident Indians except individuals of age of eighty years or above during the previous year or those residing in the States of Assam, Jammu and Kashmir and Meghalaya to furnish Aadhaar or the Enrolment ID at the time of filing Income Tax Returns. However, there have been cases where individuals, who do not possess Aadhaar, have approached the High Court on this matter and obtained interim relief to file Income Tax Returns manually without quoting Aadhaar number or Aadhaar enrolment ID. [See here]
Non-resident Indians as well as foreign citizens are again exempted from furnishing Aadhaar for the purpose of filing Income Tax returns as per the above mentioned notification. However, a dichotomy exists in case of foreign citizens as the assesses with a total income of Rs. 5 Lakh and above can only file Income Tax returns online and there is no option of filing it online without quoting Aadhaar. -
Do I need to link Aadhaar to my mutual funds folios and insurance policies?
As per the Prevention of Money-laundering (Maintenance of Records) Second Amendment Rules, 2017, residents are required to furnish their Aadhaar number for linking with mutual fund folios and insurance policies. However, as has been mentioned earlier, an interim order dated 15.12.2017 issued by the Supreme Court in the matter of K.S. Puttaswamy v. Union of India, the deadline to link Aadhaar has been extended till March 31, 2018.
Non-resident Indians (NRIs) as well as OCI card holders, on the other hand, are exempted from this requirement as they are ineligible to obtain Aadhaar under the Aadhaar Act. However, they are required to disclose their non-resident status with proof. -
Is Aadhaar mandatory for availing benefits, subsidies or entitlements under schemes of Central or State governments?
Aadhaar has been made mandatory under Section 7 of the Aadhaar Act, 2016 for availing benefits, subsidies or entitlements under schemes of Central or State Governments. However, as per a recent clarification and press note dated 10.02.2018, no essential service or benefit such as ration through PDS, medical help or hospitalisation can be denied to a genuine beneficiary for the want of Aadhaar. The beneficiary can obtain her entitlements using alternate means of identification.
Linking Mobile Numbers to Aadhaar
- Is linking Aadhaar number to mobile number mandatory for all Indian residents?
Yes, it is mandatory to link your Aadhaar with your mobile number, per a Notification 800-26/2016-ASII issued by the Department of Telecommunications, Ministry of Communications on March 23, 2017. The purpose of this, as stated in the notification, is to re-verify all mobile phone subscribers (prepaid and postpaid) through Aadhaar based E-KYC process.
However, this notification has been challenged in the Supreme Court in Raghav Tankha v. Union of India and Kalyani Menon Sen v. Union of India and the matters have been tagged with K. S. Puttaswamy vs Union of India, where a five-judge Constitution Bench will decide the overall validity of Aadhaar.The hearings are currently on-going. A judgment in these cases will hopefully be pronounced before the linking deadline which is March 31, 2018. - What is the last date to link Aadhaar number to mobile number?
While the last date, as per the earlier order of the Supreme Court in Lokniti Foundation case and the notification issued by the DoT to link Aadhaar with mobile phones was February 6, 2018, this deadline was extended to March 31 by a subsequent order of a five-Judge Bench of the Supreme Court dated December 15, 2017 in the matter of K.S. Puttaswamy & Ors. v. Union of India & Ors. Hence, the present deadline to link Aadhaar with mobile phones is March 31, 2018. - In case of possession of multiple SIM cards by one person, do all of them have to be verified using Aadhaar based E-KYC?
The DoT notification lays down that the licensee shall re-verify every mobile connection that has been allotted by it to subscribers through E-KYC process. The licensee would ensure physical possession of all these numbers assigned to subscriber by sending verification code separately on different connections through SMS post E-KYC process. Moreover, the subscriber shall also furnish separate customer application forms for each connection that he obtains. - What if I do not want to link my Aadhaar number with my mobile number ?
The deadline to link Aadhaar with mobile number is March 31, 2018. You may choose not to link before that. Also, the Supreme Court is hearing a petition challenging DoT’s notification making Aadhaar-mobile no. linkage mandatory and it is plausible that the court quashes the order. Therefore, those who do not wish to link their Aadhaar with their mobile numbers should wait for the Supreme Court’s judgment on the matter. - Can foreigners, non-resident Indians (NRI) and overseas citizens of India (OCI) obtain SIM cards without an Aadhaar card?
Non-Resident Indians: Non-Resident Indians have been provided an alternate method for re-verification vide Department of Telecommunications’ circular dated 01.12.2017 (See pages 7-10). This procedure can be performed by the NRI remotely through the internet. It is important to note that this alternate procedure is only applicable to NRIs that do not have an Aadhaar number or that have no mobile number registered with UIDAI for their Aadhaar number. Although the NRI does not need to be enrolled for Aadhaar under the procedure laid out in this circular, a ‘Trusted person’ who has an Aadhaar number needs to perform a verification that the NRI is known to them. A Trusted person can perform this verification for up to five people. The NRI would need to provide their demographic details, and information regarding their Passport and VISA. They would also be required to upload a copy of their passport and current VISA or Green Card or equivalent, and their latest coloured photograph.
Foreign Citizens Residing in India: Foreign nationals that do not have an Aadhaar number have been provided an alternate method for re-verification vide Department of Telecommunications’ circular dated 01.12.2017 (See pages 4-6). Foreign nationals, under this procedure, are required to be physically present in India. They would be required to provide their demographic details, and a copy of their passport and VISA / OCI Card. A ‘live photo’ of the Foreign national would be captured by the Telecom Service Provider (TSP) or the TSP’s representative.
Aadhaar – bank account
- Is linking Aadhaar number to bank accounts mandatory for all Indian residents?
Notification G.S.R. 538(E) by Ministry of Finance, Department of Revenue dated June, 1st 2017 published in The Gazette of India provides that it is mandatory for residents of India who are clients of bank to link their Aadhar numbers with their bank accounts. Though the notification had said that the linking must be done on or before December 31, 2017 a subsequent notification - Notification G.S.R. 1506(E) - from the Ministry extended this deadline indefinitely, and it was later clarified that the revised deadline would be March 31, 2018. If someone does not have an Aadhaar number, he/she shall enroll and furnish proof of application of enrollment. It is also pertinent to note that the original notification mandating Aadhaar-bank account linkage has been challenged before the Supreme Court in Nagrik Chetna Manch v. RBI as well as Kalyani Menon Sen v. Union of India and the case has been clubbed with a list of cases that are currently being heard. - What is the last date to link bank account to Aadhaar number?
As per the latest notification issued by Ministry of Finance, the last date to link Aadhaar card to bank accounts is March 31, 2018. - What happens in case of failure to link my bank account to my Aadhaar number on or before the deadline?
In case you fail to link your Aadhaar number with your bank account, the bank has been authorized to freeze your account and prevent you from performing further transactions on that account. - Is it mandatory to be an Aadhaar card holder to open a new bank account?
As per the June 1, 2017 notification issued by Ministry of Finance, it is mandatory for a person who is eligible to obtain Aadhaar i.e. a person who is resident or resides in India for a time period of 182 days or 12 months in immediately preceding year. - Is it necessary for OCI/NRIs who have bank accounts in India to link their bank accounts with Aadhaar?
NRI and OCIs are exempted from Aadhaar verification, thus it has been recommended for them to produce a proof of their non residential status to the bank. - In case you do not wish to link your Aadhaar number to bank account what can you do?
The June 1, 2017 notfication mandates linking of Aadhar number with the bank accounts. It must be noted however, that several petitions have challenged the validity of Aadhaar-bank account linkage before the Supreme Court, and a five-judge Constitution Bench is currently hearing arguments on this and the overall validity of Aadhaar. For those who do not wish to link their Aadhaar and bank accounts just yet, one alternative would be to refrain from linking until the Supreme Court issues a judgment on the validity of Aadhaar or until the March 31, 2018 deadline - whichever is earlier.