‘Majority judgment is correct’

Interview with Justice K.S. Puttaswamy.

Published : Oct 10, 2018 12:30 IST

Justice K.S. Puttaswamy.

Justice K.S. Puttaswamy.

IN 2012, irked by the seemingly endless list of intrusive questions, the procedural rigmarole and the thought that personal details could quite easily pass into the hands of private entities, retired High Court Judge K.S. Puttaswamy, then aged 86, along with a few “friends”, challenged the government’s Aadhaar scheme in the Supreme Court. Questioning the constitutional validity of making Aadhaar mandatory for access to government services and benefits, Puttaswamy’s petition before a three-judge bench of the Supreme Court argued that Aadhaar was a violation of the right to privacy. Faced with Puttaswamy’s petition and the Union of India’s contra contention that the Constitution does not grant specific protection for the right to privacy, the apex court in August 2015 felt that “institutional integrity and judicial discipline” and the “far-reaching questions” on hand necessitated reference of the issue to a larger bench.

In July 2017, a Constitution Bench presided over by the Chief Justice considered it appropriate that the issue be resolved by a bench of nine judges. The nine-judge bench in a unanimous and landmark 547-page judgment ruled in August 2017 that the right to privacy was a constitutionally protected fundamental right and “incidental to other freedoms guaranteed by the Indian Constitution”.

Puttaswamy’s 2012 petition may have been Aadhaar-specific but in effect it spun off challenges and sought judicial directions on a wide range of Indian legislation, including the criminalising of same-sex relationships, adultery and the bans on beef and alcohol consumption in many States. Puttaswamy, as the lead petitioner, had also questioned the government’s decision to implement Aadhaar through an executive order.

In its latest decision, the Supreme Court has partially upheld the constitutionality of the Aadhaar programme by a majority of 4 to 1. However, the court in its 1,448-page judgment, also stuck down several key provisions of the Act as unconstitutional.

Ironically, Puttaswamy, after resisting it for a long time, finally got himself enrolled for an Aadhaar number in 2017.

Are you happy with the Supreme Court’s judgment in the Aadhaar case?

In my view, the majority judgment in the Aadhaar case is correct. But, of course, I also feel that the minority judgment [of Justice D.Y. Chandrachud] may be more learned and more interesting than the majority judgment. We will assume that it is better reasoned and a better judgment. But, as our law stands, a minority judgment will not hold the field. And the majority judgment held that Aadhaar is valid and Aadhaar enrolment is necessary for the state. There is nothing wrong (legally). And given that this is a Constitution Bench, it is unlikely that another bench, maybe a larger one, will take another opinion. There is nothing wrong in making Aadhaar mandatory for those who pay income tax, and this has been held as valid by the majority judgment. Hardly 1 per cent of the population comes in this category. Compelling income tax payees to furnish all their details is also valid in my view.

Your 2012 petition against Aadhaar highlighted infringement of privacy.

At that stage the Government of India wanted to implement the Aadhaar scheme through an executive order. I filed the writ petition in the Supreme Court contending that asking for details by an executive order was wrong. Then they enacted the Aadhaar Act, 2016, providing for what are called the details in Aadhaar. The details sought are valid; the majority judgment is correct.

Your petition against Aadhaar brought into focus questions over whether the Constitution granted specific protection for the right to privacy.

That is different. Right to privacy has also been upheld. In fact, it is after a long struggle that the Supreme Court upheld the right to privacy as a fundamental right. Earlier there was a difference of opinion. While one bench had taken the view that it was a common law right, another said it was a fundamental right. The law was not settled. Now that has been set to rest by the court holding that right to privacy is a fundamental right. It has nothing to do with Aadhaar. Aadhaar only requires us to give some details, nothing more than that. Whether those details are good or bad is for you to decide.

When you petitioned the Supreme Court, your petition questioned the mandatory nature of Aadhaar.

I cannot remember all that has happened. Now, my view is that the majority view of the Supreme Court is correct. I’m likely to change my own opinion depending on a variety of factors. Especially for men who are reasonable, there is nothing like a fixed opinion for all time to come. And the court has removed the sections where private companies could use citizens’ details. Why should we give details to private entities? It is okay for the state to use these details to an extent.

The Supreme Court had itself pulled up the government on the implementation of the Aadhaar scheme but has now upheld it.

Nothing wrong. The Supreme Court has overruled decisions of smaller benches and even Constitution Benches by larger benchs.

The Aadhaar Act was passed as a Money Bill making the Rajya Sabha otiose.

Yes, critics and the minority judgment says it cannot be passed as a Money Bill. You see, the term Money Bill has been defined in the Constitution. You cannot say that the Supreme Court or the bench that passed the majority judgment has not looked at this aspect. The court has decided that it is a Money Bill. The matter ends there.

Aadhaar enrolment has gone from voluntary to mandatory. It is also, according to many legal experts, an infringement of the fundamental right to privacy.

It is for you to decide. The government has said that Aadhaar is necessary for several purposes, including security. There must be something in the argument, but we cannot accept it in its entirety.

Do you not think that Aadhaar can lead to a lot of misuse?

Everything in this world can be misused. Misuse is inevitable. Being a developing nation, the possibilities of misuse are more.

Giving one’s biometric details while enrolling for Aadhaar will result in losing one’s fundamental right to privacy.

Privacy is different. Aadhaar only seeks some details. Aadhaar requires some details to be kept by the state, which will help, for example, to track hardened criminals. There is nothing wrong in seeking these details.

Economically weaker sections stand to lose state benefits if they do not have an Aadhaar card. The state is unfairly linking Aadhaar to state benefits.

Maybe it is right for the government to insist on this. If it is necessary, you must obtain an Aadhaar card. Now it has been made simpler to obtain too. Earlier, when I applied, lots of details were asked. Not so now I am told. There is nothing wrong in compelling people to get it. I have obtained one but not used it.

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