Even though marriage may be a union of souls, a judgment of the Karnataka High Court makes it clear that the right to privacy trumps all rights and all Aadhaar information cannot be demanded by a spouse
By Dr Swati Jindal Garg
In a recent ruling which showed that the right to privacy is superior to all other rights, the Karnataka High Court held: “The relationship by marriage does not eclipse the right to privacy under the Aadhaar Act, and the personal data of information of one of the spouses stored in Aadhaar cannot be disclosed at the instance of other spouse without hearing the spouse whose information is sought by the other spouse.”
In the petition, the wife, due to a matrimonial dispute, had approached a family court in Hubballi seeking maintenance from her husband. The court granted maintenance of Rs 15,000 per month to her as well as her daughter. She had sought the husband’s data from UIDAI under the Right to Information Act in order to secure his present address and phone number for executing the family court’s order, claiming that the husband has been “absconding” as he was not found residing in the earlier address. However, the Unique Identification Authority of India (UIDAI) had questioned the direction of the single judge before whom this case had come up to consider the plea of the woman.
This judgment is of great importance in the light of the fact that it sets the record straight—the social identification number of a person can be said to be an extremely personal information, and hence, cannot be disclosed or made to be disclosed before any other person/authority even at the instance of the spouse of the said holder without his/her consent.
The bench made it clear that the Aadhaar case cannot be diluted by delegating the same to an inferior authority. Hence, a duty conferred on a High Court judge cannot be delegated to another authority that is lower in rank.
In 2011, the centre introduced a new form of identity called the Aadhaar card and established UIDAI which would issue the card to all Indians. The government intended Aadhaar to be the primary identity number for all legal Indian residents. It was in pursuance of this that it made Aadhaar available to every legal resident free of cost. In order to apply for the card, a resident is required to submit his/her biometric data, which includes a scan of his/her fingerprints and retina. UIDAI was responsible for storing the data in a centralised database.
The government then slowly and steadily made Aadhaar mandatory for numerous welfare schemes. These include subsidised food under the Public Distribution System and Mid-Day Meal Scheme and guaranteed wage labour under the Mahatma Gandhi National Rural Employment Guarantee Scheme.
The Aadhaar scheme was challenged before the Supreme Court by Justice KS Puttaswamy, a retired judge of the Karnataka High Court, who claimed that it infringed on fundamental rights guaranteed by the Constitution. Broadly, his objections included:
- The government has not put in place adequate privacy safeguards. Any private entity may request authentication by Aadhaar for any reason subject to regulations by the UIDAI. There are no checks on the power of the government to use the biometric data collected.
- Entitlements granted to the individuals by the State’s social sector schemes are themselves a fundamental right. They cannot be limited for any reason, including the failure to produce an Aadhaar Card/Number when applying for benefits.
Deciding upon these objections, the apex court on September 26, 2018, delivered a judgment wherein it upheld the Aadhaar Act as constitutionally valid. The Supreme Court further held that the Act was competently passed by Parliament, even though it was passed as a Money Bill and that the Act does not violate fundamental rights guaranteed under Articles 14, 15, 19 and 21.
The Aadhaar Act primarily entitles resident individuals to obtain an Aadhaar number by submitting certain biometric and demographic information as part of the enrolment process. It is a unique 12 digit identification number. Due to the fact that the concerned data is maintained online, the primary concern of most people is that violation of privacy cannot be avoided. The linking of Aadhaar cards to bank accounts, UPI applications, etc., has raised many questions in terms of the Right to Privacy of a citizen, apart from other security concerns.
While some sections of the Act were struck down by the Supreme Court as being unconstitutional, it held that Aadhaar was a good way to enable benefits to reach marginalised sections as it takes into consideration the dignity of people, not only from a personal, but also a community point of view.
Cyber crimes and illegal acts pertaining to leaking of data and information online are one of the biggest concerns facing society today. It was in the light of this concern that the Data Protection Bill was passed by the government in December 2018.
However, one question was whether marriage trumps the right to privacy of a person. The Karnataka High Court in the recent judgment said: “The marriage by itself does not do away with the procedural right of hearing conferred under Section 33 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits & Services) Act, 2016. The relationship by marriage, which is a union of two partners, does not eclipse the right to privacy, which is the right of an individual and the autonomy of such individual’s right stands recognised and protected by the procedure of hearing contemplated under Section 33 of the Act.”
The said hearing took place before a Division Bench comprising Justice S Sunil Dutt Yadav and Justice Vijaykumar A Patil who passed the order on an appeal filed by the Deputy Director General (DDG) and Central Public Information Officer of the Unique Identification Authority of India (UIDAI).
The bench said that the “learned Single Judge has grossly erred in directing the Assistant Director General, Central Public Information Officer (UIDAI) to issue notice to a person whose information sought to be divulged and to decide whether such information is to be divulged. It is a settled principle that, if the Act provides that a particular act is to be made in a particular manner, it should be done in such manner or not at all”.
Citing the KS Puttaswamy case, the bench also said: “The right to privacy of Aadhaar number holder preserves the autonomy of the individual’s right to privacy which is conferred primacy and admits of no exception under the statutory scheme. The relationship by marriage which is a union of two partners does not eclipse the right to privacy which is the right of an individual and the autonomy of such individual’s right stands recognised and protected by the procedure of hearing contemplated under Section 33. The marriage by itself does not do away with the procedural right of hearing conferred under Section 33 of Aadhaar Act.”
Section 33(1) of The Aadhaar Act mandates that Aadhaar information can be divulged in certain cases only by an order of a court not inferior to that of a judge of the High Court and that too only after giving the Aadhaar-number holder an opportunity of being heard. The bench said that the single judge could not have asked the DDG of UIDAI to consider the wife’s plea after hearing the husband, the Aadhaar-holder. The bench also went on to reject the argument made by the wife that the relationship of husband and wife after marriage results in merging of the identity of both and accordingly, there could be no objection for divulging the information of the spouse at the instance of the other spouse.
The bench took note of the fact that the wife had not arrayed the husband as a party to the proceeding, due to which he did not get an opportunity of being heard before an order was passed against him by the single judge. The bench thus set aside the single judge’s order and remitted the matter for fresh consideration in the light of Section 33 of the Aadhaar Act.
Even though many say that marriage is a union of two souls, the judgment passed by the Karnataka High Court goes a long way in maintaining that the right to privacy trumps all rights and not every information can be demanded as matter of right even by virtue of being a spouse.
—The writer is an Advocate-on-Record practicing in the Supreme Court, Delhi High Court and all district courts and tribunals in Delhi