Art 21 Cases

MANEKA GANDHI VS UOI 25 January, 1978:-
FACTS:-
The petitioner was issued a passport under The Passport Act, 1967. The petitioner received a letter dated
from the Regional Passport Officer Delhi intimating to her that it was decided by the Government of India
to impound her passport under s. 10(3)(c) of the Act "in public interest". The petitioner was required to
surrender her passport within 7 days from the receipt of that letter. The petitioner immediately addressed
a letter to the Regional Passport Officer requesting him to furnish a copy of the statement of reasons for
making the order as provided in s.10(5). A reply was sent by the Government of India, Ministry of External
Affairs on 6th July 1977 stating inter alia that the Government decided "in the interest of the general
public" not to furnish her copy of the statement of reasons for the making of the order.
The petitioner thereupon filed the present Writ Petition challenging action of the Government in
impounding her passport and declining to give reasons for doing so. The Act was enacted on 24-4-67 in
view of the decision of this Court in Satwant Singh Sawhney's case. The position which obtained prior to
the coming into force of the Act was that there was no law regulating the issue of passports for leaving
the shores of India and going abroad. The issue of passport was entirely within the unguided and
unchanneled discretion of the Executive. In Satwant Singh's case, this Court held by a majority that
the expression 'personal liberty' in Article 21 takes in, the right of locomotion and travel abroad and under
Art. 21 no person can be deprived of his right to go abroad except according to the procedure
established by law.
JUDGEMENT:-
1. The right of travel and to go outside the country is included in the fight to personal liberty.
2. The view that Articles 19 and 21 constitute watertight compartments has been rightly over-ruled.
3. The observations in A. K. Gopalan's case that due process with regard to law relating to preventive
detention are to be found in Art. 22 of the Constitution because it is a self-contained code for laws.
That observation was the real ratio decidendi of Gopalan's case. Other observations relating to the
separability of the subject matters of Art. 21 and 19 were mere obiter dicta.
4. The questions relating to either deprivation or restrictions of per sonal liberty, concerning laws
falling outside Art. 22 remain really unanswered by the Gopalan's case.
5. In what may be called unoccupied portions of the vast sphere of personal liberty, the substantive as
well as procedural laws made to cover them must satisfy the requirements of both Arts 14 and 19 of the
Constitution.
6. In Satwant Singh Sawhney's case this Court ruled, by majority, that the expression personal liberty
which occurs in Art. 21 of the Constitution includes the right to travel abroad and that no person can be
deprived of that right except according to procedure established by law. The mere prescription of some
kind of procedure cannot even meet the mandate of Article 21. The procedure prescribed by law has to
be fair, just and reasonable, not fanciful, oppressive or arbitrary.
7. The question whether the procedure prescribed by law which curtails or takes away the personal
liberty guaranteed by Art. 21 is reasonable or not has to be considered not in the abstract or on
hypothetical considerations like the provision for a full-dressed hearing as in a court room trial but in the
contest, primarily, of the purpose which the Act is intended to achieve and of urgent situations which
those who are charged with the duty of administering the Act may be called upon to deal with.
8. Secondly, even the fullest compliance with the requirements of Art. 21 is not the journey's end
because a law which prescribes fair and reasonable procedure for curtailing or taking away the
personal liberty granted by Art. 21 has still to meet a possible challenge under the other provisions of
the Constitution.
9. Both Articles 19(1)and 21 are independent fundamental rights though there is a certain amount of
overlapping; and there is no question of one being carved out of another. The minority view was upheld
as correct and it was pointed out that it would not be tight to read the expression 'personal liberty' in Art.
21 in a narrow and restricted sense so as to exclude those attributes of personal liberty which are
specifically dealt with in Art. 19(1).
10. Art. 21 is of the widest amplitude and covers a variety of rights which go to constitute the personal
liberty of man and some of them have been raised to the status of distinct fundamental, rights and
given additional protection under Art. 19(1). Thus Articles 19(1) and 21 are not mutually exclusive.
11. The law must therefore be now taken to be well-settled that Article 21 does not exclude Article 19 and
that even if there is a law prescribing procedure for depriving a person of personal liberty and there is
consequently no infringement of the fundamental right conferred by Art. 21, such law ill so far as it
abridges or takes away any fundamental right under Article 19 would have to meet the challenge of
that Article. Equally such law would be liable to be tested with reference to Art. 14 and the procedure
prescribed by it would have to answer the requirement of that Article.
Aadhar Case- Justice K.S. Puttaswamy (Retd.) v UOI C.1

2017. 5 judge-bench. 4:1. Dissenting of D.Y. Chandrachud.
Introduced by way of an executive order under article 77. There was no legislation or even a bill introduced
in the parliament to discuss the scheme. Came from the ministry of technology. The government had spent a
lot of money on this scheme. In India, a lot of people claimed services under PDS over n over again by way
of duplication which is why they wanted to introduce the scheme with a unique number and biometric data
like fingerprints, eye scan etc. which are completely unique. Congress government froze this owing to the
number of lawsuits filed against this scheme. With Modi Government, this was jump started again.
UIDAI is a statutory authority that was introduced in India in 2017 and the purpose of it is to authenticate
the Aadhar. The Aadhar Targeted Delivery of Financial and Other Subsidies, Benefits and Services Act,
2016. S 7 it is mandatory to have an Aadhar card to avail public benefits. This was introduced as a money
bill in LS because BJP did not have majority in RS back then. Article 110(3). (There is no judicial review of
primary legislations in England due to the Doctrine of Parliamentary Sovereignty, only administrative orders
can be reviewed by the judiciary. In India, judicial review is allowed because of the supremacy of the
constitution).
With another money bill, amendment wherein Aadhar card should be linked with Pan Card and Bank
accounts.
1. Whether the parliament was competent to pass this money bill.
2. Whether biometric data collection violates privacy.
3. Whether making Aadhar mandatory for availing public services violates equality.
In a question on this case, we will first talk about whether it is a money bill or not. Chandrachud
interestingly did this, but the majority surprisingly did not.
Attorney general mentioned the David Bilchitz Theory: whenever the state impinges on any of your
constitutional right, the following must be the test:
1- Legitimate state interest.
2- Must have a legislation. Executive orders won’t suffice even though they are law under article 13.
3- Necessity.
4- Proportionality.
Explanation:
1- The measure employed by the government must be identified.
2- Effectiveness of that measure.
3- The realisation of those measures must be real and substantial.
4- Impact of the measure.
Using this theory, the question that is taken up is whether the government can achieve this purpose by an
alternative method which is least intrusive. The attorney general in this case failed to show the case what can
be these least intrusive. Therefore, according to Kuldeep, there is nothing Bilchitz in this case.
She will send the summary.
Puttaswamy test of violation of privacy:
1. Legality which postulates the existence of a law.
2. The need must be defined in terms of a legitimate state aim.
3. Proportionality which ensures a rational nexus between the object and the means adopted to achieve
them must be right, just, fair and reasonable.
7th November 2023

Dissenting opinion of J Khanna
The entire aadhaar program………
Aadhaar scheme was introduced by way of an executive order under art 77?. Biometric data and personal
data may leak.
J chandrachud- the aadhaar act is unconstitutional from its enactment, it could not have been passed as a
money bill. It must satisfy the requirements of a money bill to be passed as a money bill art 110
Expenditures of the govt charged on the consolidated fund of india, whatever tax the govt collects must go
into the consolidated fund in india and to take out even 1 rupee, it has to be a financial bill or a money bill.
Every year govt comes up with an annual budget. Every year theier must be money bill charged on the
consolidated fund of india for expenses.
Just by saying that expenditure to be charged on the consolidated fund of india does not make it a money
bill, you have to fulfil the criteria of money bill mentioned in art 110, it was just a move to bypass the rajya
sabha,
If you don’t comply with the constitutional provisions then it is a fraud in the name of a money bill, it also
undermines the principles of federalism, as rajya sabha represents all the states in india, the passing of the
aadhaar act is unconstitutional, it must only contain the provisions which are related to matters present in art
110.
Additionaly section 7 does not discus expenditure, and whenever expenditure is incurred on consolidated
fund of india, then the aadhaar becomes mandatory, this passage of aadhaar act as a money bill was a
debasement of constitutional principles.
In india, we have judicial review of money bill, it is final as far as the parliament is concerned as the speaker
says it is a money bill, but it needs to be checked the legislative intent
This basic human facilities serve constitutional purpose under DPSP but when designing a new and unique
identification purpose, there should be……..
The aadhaar scheme must have to be governed by a legal regime and consent is required if you want to
register for the aadhaar scheme, individual is the one who should have control ove the biometric data and
privacy and not the govt
It is imperative, concerns about privacy and leakage of biometric data should be kept in mind before taking
such a step
S 28 clause 5 is invalid as it violates the right of individual ownership of personal data.
The state is under a constitutional obligation to safeguard the dignity of individuals
Dignity cannot be made dependent on algorithms and technological vulnerabilities
Violation of dignity under art 21, J CHANDRACHUD also struck down some sections in the aadhaar act
and the linkage with the PAN card was valid as it was done to counter money laundering and black money
accumulation, but the linkage with sim card was not valid.

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MANEKA GANDHI VS UOI 25 January, 1978:-

Aadhar Case- Justice K.S. Puttaswamy (Retd.) v UOI C.1

7th November 2023

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