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2023 DIGILAW 918 (PNJ)

Sher Khan@Sheru v. State of Haryana

2023-02-28

N.S.SHEKHAWAT

body2023
JUDGMENT N.S.Shekhawat, J. The petitioner/applicant has moved the instant application with a prayer to direct the Unique Identification Authority of India (UIDAI) to provide the requisite information regarding the updation of Aadhaar Card No.380791154552 of his missing daughter namely, Rukhsana to the Special Investigating Team of District Yamuna Nagar, which has been constituted to investigate the offence in case FIR No.323, dated 06.06.2016 under Section 365 IPC Police Station City Jagadhari. 2. Learned counsel for the petitioner/applicant contended that while preparing the family ID of the members of the petitioner, he came to know that Aadhaar Card bearing No. 380791154552 of his missing daughter namely Rukhsana had been used somewhere in Punjab. In this regard, the petitioner had submitted an application dated 03.09.2021 and an affidavit dated 01.03.2022 before the SHO Police Station, City Jagadhari and DSP, Headquarter Jagadhari and the police also recorded the statement of petitioner in this regard. He further contends that the police had further verified the information provided by the petitioner regarding the updation of address in Aadhaar Card of missing daughter Rukhsana and the Superintendent of Police, Yamuna Nagar moved a letter No. 9082 dated 23.02.2022 to the Director, UIDAI, Chandigarh with a request to provide the information of the address of Rukhsana and her mobile number linked with Aadhaar Card No.380791154552, so that the missing girl might be traced. However, while referring to the provisions of Section 33 (1) of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 (hereinafter referred to as the Aadhaar Act), the said authority had refused to supply the desired information to the police. Learned counsel further contends that without specific orders by this Court, the UIDAI authority would not provide any information, which is necessary to trace his missing daughter. 3. During the proceedings of the present case, a status report dated 27.02.2023 by way of affidavit of Deputy Superintendent of Police, Yamuna Nagar was filed before this Court. It was stated that a new Special Investigation Team headed by DSP, Headquarters, Yamuna Nagar had been constituted on 22.02.2023. After the constitution of the SIT, best efforts were made to recover Rukhsana daughter of the petitioner and the police also went to village Gaju, Patiala Punjab and enquiry was made regarding the missing girl, but her whereabouts could not be known. After the constitution of the SIT, best efforts were made to recover Rukhsana daughter of the petitioner and the police also went to village Gaju, Patiala Punjab and enquiry was made regarding the missing girl, but her whereabouts could not be known. During the course of investigation, it was also found that the Aadhaar card of the missing girl namely, Rukhsana had been found activated but the whereabouts of the said person had not been found. It was also stated that a letter No. 9082, dated 23.02.2022 had been written to the Director, UIDAI, Regional Officer, Chandigarh to supply the information of Aadhaar Card holder and address and mobile number of the missing girl. But the Section Officer, Ministry of Electronic & IT, Government of India, UIDAI, Chandigarh had intimated that the Aadhaar Act, 2016, restrained the sharing of information procured from Aadhaar number holders except as per the provisions of Aadhaar Card. The DSP also annexed the copy of the letter dated 24.02.2022, whereby UIDAI had refused to supply the desired information. Apart from that, the DSP Yamuna Nagar also filed an affidavit dated 26.03.2022, before this Court with a prayer to direct UIDAI to provide the requisite information as sought by them vide letter dated 23.02.2022. 4. In response to the notice, a short reply has been filed on behalf of Unique Identification Authority of India (UIDAI). Mr. Arvind Moudgil, learned counsel for UIDAI submits that the UIDAI is required to maintain the security and confidentiality of the identity information and authentication records of individuals. The Aadhaar Act, 2016 (as amended) imposes restrictions on sharing of information. He further contends that the disclosure of information, including identity information or authentication records (except the core biometric information) can only be made in accordance with the provisions of Section 33 (1) of Aadhaar Card 2016 (as amended by Aadhaar (Amendment) Act of 2019). Learned counsel further submits that an order for disclosure of information can be made only by this Court after giving an opportunity of hearing to UIDAI and the concerned Aadhaar number card holder also. In the present case, an order directing UIDAI to disclose the required information can be passed only after hearing the missing girl namely, Rukhsana as she is the Aadhaar card number holder in the present case and prayed for dismissal of the application. 5. In the present case, an order directing UIDAI to disclose the required information can be passed only after hearing the missing girl namely, Rukhsana as she is the Aadhaar card number holder in the present case and prayed for dismissal of the application. 5. I have heard learned counsel for the parties and have considered the rival submissions made by them. 6. As per the statement of objects and reasons of Aadhaar Act, 2016, the Unique Identification Authority of India (UIDAI) was established by a resolution of Government of India, Planning Commission vide the notification dated 28.01.2009. The object of the establishment of the said authority was primarily to lay down policies and to implement the Unique Identification Scheme of the Government, by which the residents of India were to be provided unique identity number. This number, when authenticated successfully, would serve as a proof of identity and could be used for identification of the beneficiaries for the transfer of benefits, subsidies, services and other purposes. Later on, it was felt that the process of enrolment, authentication, security, confidentiality and use of Aadhaar card related information should be made statutory so as to facilitate the use of Aadhaar number for the delivery of various benefits, subsidies and services, the expenditures of which were incurred from or receipt therefrom formed part of consolidated fund of India. Over a period of time, the use of Aadhaar card had increased manifold. As a result, commensurate measures relating to ensuring the security of such information were taken and the offences pertaining to certain unlawful actions were created. The Act was enacted in the year 2016, which was further amended by Act No. 14 of 2019. 7. In order to appreciate the controversy involved in the present case, it would be appropriate to reproduce the relevant provisions of law in the present case. "28. Security and confidentiality of information.- (1) The Authority shall ensure the security of identity information and authentication records of individuals. (2) Subject to the provisions of this Act, the Authority shall ensure confidentiality of identity information and authentication records of individuals. "28. Security and confidentiality of information.- (1) The Authority shall ensure the security of identity information and authentication records of individuals. (2) Subject to the provisions of this Act, the Authority shall ensure confidentiality of identity information and authentication records of individuals. (3) The Authority shall take all necessary measures to ensure that the information in the possession or control of the Authority, including information stored in the Central Identities Data Repository, is secured and protected against access, use or disclosure not permitted under this Act or regulations made thereunder, and against accidental or intentional destruction, loss or damage. (4) Without prejudice to sub-sections (1) and (2), the Authority shall- (a) adopt and implement appropriate technical and organisational security measures; (b) ensure that the agencies, consultants, advisors or other persons appointed or engaged for performing any function of the Authority under this Act, have in place appropriate technical and organisational security measures for the information; and (c) ensure that the agreements or arrangements entered into with such agencies, consultants, advisors or other persons, impose obligations equivalent to those imposed on the Authority under this Act, and require such agencies, consultants, advisors and other persons to act only on instructions from the Authority. (5) Notwithstanding anything contained in any other law for the time being in force, and save as otherwise provided in this Act, the Authority or any of its officers or other employees or any agency that maintains the Central Identities Data Repository shall not, whether during his service or thereafter, reveal any information stored in the Central Identities Data Repository or authentication record to anyone: Provided that an Aadhaar number holder may request the Authority. to provide access to his identity information excluding his core biometric information in such manner as may be specified by regulations. "29. Restriction on sharing information. (1) No core biometric information, collected or created under this Act, shall be- (a) shared with anyone for any reason whatsoever; or (b) used for any purpose other than generation of Aadhaar numbers and authentication under this Act. (2) The identity information, other than core biometric information, collected or created under this Act may be shared only in accordance with the provisions of this Act and in such manner as may be specified by regulations. (2) The identity information, other than core biometric information, collected or created under this Act may be shared only in accordance with the provisions of this Act and in such manner as may be specified by regulations. [(3) No identity information available with a requesting entity or offline verification-seeking entity shall be- (a) used for any purpose, other than the purposes informed in writing to the individual at the time of submitting any information for authentication or offline verification; or (b) disclosed for any purpose, other than purposes informed in writing to the individual at the time of submitting any information for authentication or offline verification: Provided that the purposes under clauses (a) and (b) shall be in clear and precise language understandable to the individual.] (4) No Aadhaar number 2[, demographic information or photograph] collected or created under this Act in respect of an Aadhaar number holder shall be published, displayed or posted publicly, except for the purposes as may be specified by regulations. "30. Biometric information deemed to be sensitive personal information-. The biometric information collected and stored in electronic form, in accordance with this Act and regulations made thereunder, shall be deemed to be "electronic record" and "sensitive personal data or information", and the provisions contained in the Information Technology Act, 2000 (21 of 2000) and the rules made thereunder shall apply to such information, in addition to, and to the extent not in derogation of the provisions of this Act. Explanation For the purposes of this section, the expressions- (a) electronic form" shall have the same meaning as assigned to it in clause (r) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000); (b) electronic record" shall have the same meaning as assigned to it in clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000); (c) "sensitive personal data or information" shall have the same meaning as assigned to it in clause (iii) of the Explanation to section 43A of the Information Technology Act, 2000 (21 of 2000). "33. "33. Disclosure of information in certain cases.-(1) Nothing contained in sub-section (2) or sub-section (5) of section 28 or sub-section (2) of section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made pursuant to an order of a court not inferior to that of a '[Judge of a High Court]: Provided that no order by the court under this sub-section shall be made without giving an opportunity of hearing to the Authority and [the concerned Aadhaar number holder]: [Provided further that the core biometric information shall not be disclosed under this sub-section.] (2) Nothing contained in sub-section (2) or sub-section (5) of section 28 and clause (b) of sub-section (1), sub-section (2) or sub-section (3) of section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made in the interest of national security in pursuance of a direction of an officer not below the rank of "[Secretary] to the Government of India specially authorised in this behalf by an order of the Central Government: Provided that every direction issued under this subsection, shall be reviewed by an Oversight Committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology, before it takes effect: Provided further that any direction issued under this subsection shall be valid for a period of three months from the date of its issue, which may be extended for a further period of three months after the review by the Oversight Committee. 8. As per the scheme of the Act, the UIDAI has been entrusted with the task of ensuring the security of identity information and authentication records of individuals. As per the mandate of the Act, no core biometric information collected or created under the Act shall be shared with anyone for any reason whatsoever. However, the identity information, other than the core biometric information, collected or created under the Act could be shared only as per the provisions of the Aadhaar Act. Section-28 of the Act provides for restriction on sharing information. It provides that identity information, other than core biometric information, collected or created under the Act may be shared only in accordance with the provisions of the Act and in such manner as may be specified by regulations. Section-28 of the Act provides for restriction on sharing information. It provides that identity information, other than core biometric information, collected or created under the Act may be shared only in accordance with the provisions of the Act and in such manner as may be specified by regulations. Section 33 of the Aadhaar Act clearly provides that the disclosure of information, including identity information or authentication records can be made pursuant to an order of a Court which is not inferior to that of a Judge of a High Court and it could be disclosed only after giving an opportunity of hearing to UIDAI and the concerned Aadhaar card number holder as well. Even the said provision of law clearly prohibited the disclosure of core biometric information. 9. The Hon'ble Supreme Court in the matter of K.S. Puttaswamy v. Union of India 2019 (1) SCC 1 , upheld the constitutional validity of the Aadhaar Act. However, certain provisions of the said Act were struck down/read down and clarified. The following excerpts of the judgment of the Hon'ble Supreme Court are relevant and are reproduced here under:--- "513.5 Section 33(1) of the Act prohibits disclosure of information, including identity information or authentication records, except when it is by an order of a court not inferior to that of a District Judge. We have held that this provision is to be read down with the clarification that an individual, whose information is sought to be released, shall be afforded an opportunity of hearing. If such an order is passed, in that eventuality, he shall also have right to challenge such an order passed by approaching the higher court. During the hearing before the court concerned, the said individual can always object to the disclosure of information on accepted grounds in law, including Article 20(3) of the Constitution or the privacy rights, etc. "513.6. Insofar as Section 33(2) is concerned, it is held that disclosure of information in the interest of national security cannot be faulted with. However, for determination of such an eventuality, an officer higher than the rank of a Joint Secretary should be given such a power. Further, in order to avoid any possible misuse, a Judicial Officer (preferably a sitting High Court Judge) should also be associated with. However, for determination of such an eventuality, an officer higher than the rank of a Joint Secretary should be given such a power. Further, in order to avoid any possible misuse, a Judicial Officer (preferably a sitting High Court Judge) should also be associated with. We may point out that such provisions of application of judicial mind for arriving at the conclusion that disclosure of information is in the interest of national security, are prevalent in some jurisdictions. In view thereof, Section 33(2) of the Act in the present form is struck down with liberty to enact a suitable provision on the lines suggested above. 10. Apart from that, the Hon'ble Supreme Court considered the need to protect the privacy interests of individuals, while furthering the legitimate State interests. The Hon'ble Supreme Court also directed the State to embark upon the exercise of balancing of competing interests. While dwelling on "Right to Privacy", the Hon'ble Supreme Court held in the matter of K.S. Puttaswamy v. Union of India 2019 (1) SCC 1 as follows:- "109.6. Right to privacy cannot be impinged without a just, fair and reasonable law. It has to fulfil the test of proportionality i.e. (i) existence of a law; (ii) must serve a legitimate State aim; and (iii) proportionality:(K.S. Puttaswamy case, SCC pp. 504-05, 509, 531-32, 549, 602 & 632, paras 310-13, 325, 377-80, 426, 526 & 638) Dr D.Y. Chandrachud, J.: "310. While it intervenes to protect legitimate State interests, the State interests, the State must nevertheless put into place a robust regime that ensures the fulfilment of a threefold requirement. These three requirements apply to all restraints on privacy (not just informational privacy). They emanate from the procedural and content-based mandate of Article 21. The first requirement is an express requirement of Article 21. For, no person can be deprived that there must be a law in existence to justify an encroachment on privacy of his life or personal liberty except in accordance with the procedure established by law. The existence of law is an essential requirement Second, the requirement of a need, in terms of a legitimate State aim, ensures that the nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary State action. The existence of law is an essential requirement Second, the requirement of a need, in terms of a legitimate State aim, ensures that the nature and content of the law which imposes the restriction falls within the zone of reasonableness mandated by Article 14, which is a guarantee against arbitrary State action. The pursuit of a legitimate State aim ensures that the law does not suffer from manifest arbitrariness. Legitimacy, as a postulate, involves a value judgment. Judicial review does not re-appreciate or second guess the value judgment of the legislature but is for deciding whether the aim which is sought to be pursued suffers from palpable or manifest arbitrariness. The third requirement ensures that the means which are adopted by the legislature are proportional to the object and needs sought to be fulfilled by the law. Proportionality is an essential facet of the guarantee against arbitrary State action because it ensures that the nature and quality of the encroachment on the right is not disproportionate to the purpose of the law. Hence, the threefold requirement for a valid law arises out of the mutual interdependence between the fundamental guarantees against arbitrariness on the one hand and the protection of life and personal liberty, on the other. The right to privacy, which is an intrinsic part of the right to life and liberty, and the freedoms embodied in Part III is subject to the same restraints which apply to those freedoms. 311. Apart from national security, the State may have justifiable reasons for the collection and storage of data. In a social welfare State, the Government embarks upon programmes which provide benefits to impoverished and marginalised sections of society. There is a vital State interest in ensuring that scarce public resources are not dissipated by the diversion of resources to persons who do not qualify as recipients. Allocation of resources for human development is coupled with a legitimate concern that the utilisation of resources should not be siphoned away for extraneous purposes. Data mining with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the State to insist on the collection of authentic data. But, the data which the State has collected has to be utilised for legitimate purposes of the State and ought not to be utilised unauthorisedly for extraneous purposes. Data mining with the object of ensuring that resources are properly deployed to legitimate beneficiaries is a valid ground for the State to insist on the collection of authentic data. But, the data which the State has collected has to be utilised for legitimate purposes of the State and ought not to be utilised unauthorisedly for extraneous purposes. This will ensure that the legitimate concerns of the State are duly safeguarded while, at the same time, protecting privacy concerns. Prevention and investigation of crime and protection of the revenue are among the legitimate aims of the State. Digital platforms are a vital tool of ensuring good governance in a social welfare State. Information technology legitimately deployed is a powerful enabler in the spread of innovation and knowledge." 11. Further, the Hon'ble Supreme Court has held in a catena of judgments that privacy has been held to be integral element of right to life and personal liberty, which has been guaranteed under Article 21 of the Constitution of India. As right to life and liberty is not absolute, similarly right to privacy can also never be held to be the absolute right and has always subjected to certain limitations. A law, which encroaches upon the privacy has to withstand the touchstone of permissible restrictions on fundamental rights. Any invasion on privacy must be justified on the basis of a law which stipulates a procedure, which is fair, just and reasonable. The law must also be valid with reference to the encroachment on life and personal liberty under Article 21 of the Constitution of India. 12. This Court, being a constitutional Court, is also cognizant of the fact that the Judge has to ensure that life and liberty is preserved and has to balance the same. If any information is required to protect the legitimate State interests or public interests, the disclosure of the same can never be said to be in violation of Section 33 of the Aadhaar Act. As held above, even the Hon'ble Supreme Court has held that this Court has to balance between the legitimate concerns of the State and the privacy concerns of the individuals. Prevention and investigation of crime and protection of the revenue are among the legitimate aims of the State. As held above, even the Hon'ble Supreme Court has held that this Court has to balance between the legitimate concerns of the State and the privacy concerns of the individuals. Prevention and investigation of crime and protection of the revenue are among the legitimate aims of the State. In the instant case, the learned counsel appearing on behalf of UIDAI has opposed the disclosure of the information by taking shelter of the provisions of Section 33 of the Aadhaar Act. However, the said provision of the Act has now been read down by the Hon'ble Supreme Court in the matter of K.S. Puttaswamy v. Union of India 2019 (1) SCC 1 (Supra). In order to exercise the powers under Section 33 of the Act, a strong case has been made out by the aggrieved person. The petitioner/applicant in the present case is an unfortunate father, who has invoked the constitutional powers of this Court to direct the police authorities to trace his missing daughter namely Rukhsana, who is missing for the last seven years. During the course of investigation, as is apparent from the affidavit filed by the head of the SIT, that the Aadhaar Card of missing girl Rukhsana has been found activated, but her whereabouts had not been found. Even the investigation conducted by SIT, has come to a grinding halt as UIDAI has refused to divulge the information relating to updation of Aadhaar card No. 380791154552, which belongs to the missing girl Rukhsana. This action on the part on UIDAI clearly infringes upon the rights of the petitioner under Article 21 of the Constitution of India, as right to fair investigation is an integral element of right to life and liberty. Apart from that, the denial of such information not only violates the rights of the petitioner, but also tramples upon the right of the abducted girl namely Rukhsana, who can never be deprived of her right to live with dignity with her family as guaranteed under Article 21 of the Constitution of India. In the instant case, apparently from the investigation conducted so far, it is apparent that Rukhsana has been kidnapped by certain individuals and it is quite possible that she has been confined by some unknown criminals illegally. Consequently, even Rukhsana cannot be denied of her right to fair investigation, even though she is not a petitioner before this Court. In the instant case, apparently from the investigation conducted so far, it is apparent that Rukhsana has been kidnapped by certain individuals and it is quite possible that she has been confined by some unknown criminals illegally. Consequently, even Rukhsana cannot be denied of her right to fair investigation, even though she is not a petitioner before this Court. But, being a guardian of constitutional rights of a citizen, this Court can always take cognizance of the same and can also ensure the grant of same to the individuals, who had not even been able to knock the doors of this Court for redressal of their grievances. Even the Hon'ble Supreme Court in the matter of K.S. Puttaswamy v. Union of India 2019 (1) SCC 1 (Supra) has clearly held that the data can be collected by the State for utilisation of legitimate purposes of the State and the prevention and investigation of crime are among the legitimate aims of the State. Thus, the objections raised by UIDAI are repelled in view of the discussion above. 13. Learned Senior Panel Counsel appearing for UIDAI also relied upon interim order 20.01.2021 passed by a Division Bench of the Hon'ble Bombay High Court. However, it is only an interim order and can never be treated as a precedent. Even the said interim order has been passed by the Division Bench of Hon'ble Bombay High Court by not taking into consideration the law laid down by the Hon'ble Supreme Court in the matter of K. S. Puttaswamy v. Union of India 2019 (1) SCC 1 ( supra) can never be treated as a precedent. 14. In view of the above discussion, application filed by the present petitioner is allowed and UIDAI is directed to provide the requisite information (except the core biometric information)with regard to updation of Aadhaar Card No.380791154552 pertaining to missing girl namely, Rukhsana, to the head of SIT, who shall proceed to investigate the matter in accordance with law. 15. List on 25.04.2023.