The Unruly horse of Indian Arbitration: The evolution of Public Policy under sections 34 and 48 of the Arbitration and Conciliation Act 1996.

by Rohit Shankar

 

Introduction

‘Public policy’ has been long regarded as an abstract concept that incorporates within its ambit, considerations of legality under the prevailing laws of the nation as well as factors emerging from the sovereign rights of the nation, such as its interests in the realm of foreign policy, as well as its unique notions of justice and morality; First under common law, and later codified into statues governing contractual relationships, contracts, whose objects are in violation of the State’s public policy are regarded as void[1].

Courts have described the concept as an ‘unruly horse, which could lead anywhere’[2] as well that ‘with a good man at the saddle, the unruly horse can be tamed and jump over obstacles’[3]. Apart from a mild case of overuse of the metaphor, these rulings reflect the almost universal trend of conflicting interpretations as to the nature and scope of the concept of public policy. The choice between a broad and elastic interpretation juxtaposed with a restrictive and narrow interpretation, has been one that most jurisdictions, have struggled with and have never adequately resolved.

Arbitration has always been a means of Alternate Dispute Resolution tracing its origins, according to some authors, to the biblical judgment of Solomon[4]. Today, arbitration has become an internationally recognized method for dispute resolution with inter-state, inter-party and investor-state arbitrations being practiced in various forms both domestically in as well as internationally.

The New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958, with over 150 contracting states, provides an international framework within which an arbitral award, regardless of which state the award was passed in. Among the defenses granted to a contracting state to refuse the recognition and enforcement of an award is an instance where the enforcement of the award would be contrary to the public policy of that state[5].

India’s law on arbitration emerges from the Arbitration and Conciliation Act, 1996, which mirrors the provisions of the New York Convention in allowing the refusal of recognition and enforcement of a foreign award, or the setting aside of a domestic award, on public policy considerations[6]. The position in Indian law in this regard has been consolidated through the Arbitration Amendment Act of 2015, which added explanations to the extant provisions, stipulating the scope of what might be considered the ‘public policy’ of India for the purposes of the Act.

Public Policy under common law

English courts have examined the test of public policy in the context of contracts, both to censor a contract between parties and to examine whether it must be enforced. Lord Mansfield laid down the principle that ‘no court will lend its aid to a man who founds his cause of action upon an immoral/illegal act’, thus, in effect, laying the foundations for the refusal to enforce an illegal contract.[7]

The concept of public policy, due to its inherently vague nature has lent itself to two main types of interpretations, a broad interpretation, granting Courts the power to add to its scope and a narrow or restrictive interpretation that fixes the concept to a certain stipulated number of considerations. The conflicting interpretations of the concept could also be characterized as a debate as to whether public policy was a judge-made test or one that was grounded in legislation.

In Egerton v Brownlow, the House of Lords while considering the question, sought the opinions of eleven judges. The opinion in favor of a broad interpretation was given by Justice Pollock, who postulated that even in a case without precedent where a judge had to weigh public good with the caprice of a contracting party, the judge was entitled under common law to make a determination as to the same, in favor of the public good.[8] The converse opinion, provided by Justice Parke was that judges could not create the law and could not speculate as to what could be considered good for the community.[9] The House of Lords, eventually, chose the broader interpretation of public policy, though the debate as to the conflicting interpretations continued.

Notably in the famous case of Richardson v Mellish[10], Justice Burroughs, urging a restrictive interpretation of the concept, held – “I, for one, protest, as my Lord has done, against arguing too strongly upon public policy; -it is a very unruly horse, and when once you get astride it you never know where it will carry you. It may lead you from the sound law. It is never argued at all but when other points fail.” The uncertainty faced in the application of a test of ‘public conscience’, or merely weighing the outcomes of enforcement against its refusal, was observed in Tinsley v Milligan, by the House of Lords[11].

The modern position on the concept is illustrated in a recent judgment by the Queen’s Bench in Parkingeye Ltd. v Somerfield Stores Ltd[12], where three factors were used in making a final decision; they were: –

(i)            Whether the parties had intended at the time of entering into the contract for it to have an illegal consequence.

(ii)          Whether the illegal portion of the contract was central to its execution; and

(iii)         Whether the gravity of the illegality was sufficient to render the contract unenforceable.

Thus, it may be concluded that under the English Arbitration Act 1996, when an arbitral award is refused because its enforcement would violate public policy, the Courts will use factors that are similar to those laid out in Parkingeye. Further, that the Court will seek a compromise between the conflicting interpretations of the concept of public policy under common law.

Public policy under Indian Law

The concept in general

The concept of public policy, while finding its place in numerous statues under Indian Law, such as the Indian Contract Act[13], The Transfer of Property Act[14], The Indian Penal Code[15] etc., has not been conclusively defined. The definition of the concept has arisen out of interpretations by the Indian judiciary, which, like its English counterpart, has juxtaposed a broad interpretation with a narrow interpretation. This lack of a conclusive definition has even been recognized by the Law Commission of India, in its specific recommendations aimed at providing clarity in the context of arbitrations[16].

The Supreme Court, in a matter regarding the validity of a wagering contract, expounded upon the doctrine of public policy, holding that- “for want of better words Lord Atkin describes that something done contrary to public policy is a harmful thing, but the doctrine is extended not only to harmful cases but also to harmful tendencies; this doctrine of public policy is only a branch of common law, and, just like any other branch of common law, it is governed by precedents; the principles have been crystallized under different heads and though it is permissible for Courts to expound and apply them to different situations, it should only be invoked in clear and incontestable cases of harm to the public; though the heads are not closed and though theoretically it may be permissible to evolve a new head under exceptional circumstances of a changing world, it is advisable in the interest of stability of society not to make any attempt to discover new heads in these days.”[17]

The Supreme Court’s ruling above, was founded, in addition to the common-law jurisprudence on the subject, upon an analysis of earlier rulings by various Indian High Courts on the matter.[18] In a matter concerning the withdrawal of a letter of resignation submitted by a judge, a five-judge bench of the Supreme Court, affirmed the stand that public policy was a questionable and unsafe ground for a judicial decision and was to be adopted only in instances where there was clear and undeniable harm to the public[19].

The Supreme Court has also recognized that the concept of ‘public good’, upon which the doctrine of public policy is based, is subject to variance with changing times[20]. Through this holding along with several others[21], the Court has leant toward a broader interpretation of the concept, reflecting the ongoing debate as to its scope.

Public policy in arbitrations

The concept of public policy has been a debated issue of interpretation by the Supreme Court of India in various arbitration matters before it. Given that the Indian Arbitration and Conciliation Act 1996, which allows under sections 34 and 48, for domestic awards to be set aside and foreign awards to be refused recognition and enforcement respectively, on public policy considerations, there have been several judgments on the issue.

The first pronouncement regarding the concept was in the case of Renusagar Power Co. v General Electric Co,[22] where the Supreme Court addressed a matter concerning the enforcement of a foreign award, under the Foreign Awards Act 1961 and the Indian Arbitration Act 1940. Section 7(1)(b)(ii) of the Foreign Awards Act 1961, provided that the enforcement of a foreign award could be refused if the enforcement was contrary to public policy. The arbitral tribunal in the matter had awarded interest upon interest owed by a party to the other, as well as providing compensatory damages for the same. The award was challenged on the ground that the awarding of interest on a sum that was owed by way of interest was against the public policy of India as well as the State of New York, which was the seat of the arbitration.

The Court held that the term ‘public policy’ under section 7 of the Foreign Awards Act 1961, meant exclusively the public policy of India. It further went on to hold that since the Act provided that the enforcement of a foreign award may be refused if it violates Indian law or public policy, the separation of the two grounds would indicate that there had to be more than a violation of Indian Law for there to be a contravention of public policy. The Court proceeded to lay down the scope of the public policy consideration as being restricted to: –

(i)            The Fundamental Policy of Indian Law;

(ii)          The interests of India;

(iii)         Justice and Morality.

The above narrow interpretation of public policy was however, broadened in the case of Oil and Natural Gas Corporation Ltd v SAW Pipes Ltd[23]. The Supreme Court relied upon its holdings in Muralidhar Agarwal and Central Inland Water Transport Corporation, to rule that the concept of public policy was subject to changing conceptions of ‘public good’ and that it was the duty of the Court to broaden the concept and add new heads of public policy if the situation called for it. On this basis, it was held that if the award passed by the Tribunal was patently illegal, or in direct conflict with a statutory provision, an enforcement of the award would be contrary to public policy. It thus added a new ground – that of ‘patent illegality’ – under which an award could be set aside under the public policy consideration in section 34. However, the Court stipulated that the illegality was to go to the root of the matter for the award to be termed as violating public policy.

The SAW Pipes judgement has been heavily criticized on account of its enlargement of the ambit of the term public policy. However, on an empirical examination the ruling appears to be founded on strong legal grounds. It is based on the ruling in Central Inland Water Transport Corporation, where contracts that were patently arbitrary or unfair due to unequal bargaining power was held a violation of article 14 of the Constitution of India as well as section 23 of the Contract Act. Further the ruling must be seen as having been made in exercise of the jurisdiction conferred under section 34, therefore not making it an instance of judicial intervention that is not expressly permitted under the Act.

The Supreme Court followed the SAW Pipes judgment while adjudicating the case of McDermott International v Burn Standard[24]. However, it was observed that while there were numerous criticisms regarding the correctness of the earlier judgment, its overruling was left to a larger bench.

While hearing a matter in its appellate jurisdiction concerning the enforcement of a foreign award which was being challenged as being contrary to public policy, the Supreme Court in Phulchand Exports v OOO Patriot, held that the expanded scope of the term provided under the SAW Pipes ruling would apply to Section 48. However, it examined the matter on facts and held that the enforcement of the award would not violate public policy.

The Supreme Court, in a three-judge bench, had the opportunity to revisit the position in Shri Lal Mahal Ltd v Progetto Grano Spa[25]. The Court was presiding over a matter concerning challenge to the enforcement of a foreign award under section 48 of the Arbitration and Conciliation Act 1996. It analyzed the holdings in Renusagar, Phulchand and SAW Pipes, while determining the scope of public policy for section 48. It held that the ruling in Renusagar, where another three-judge bench narrowly interpreted the concept would be applicable, while the ruling in SAW Pipes would apply exclusively to proceedings for the setting aside of domestic awards on public policy considerations. The Court further overruled the Phulchand case stating that for the purposes of enforcement of a foreign award the term public policy would consist of the three components laid down in the Renusagar case.

Another three-judge bench had the opportunity to examine the SAW Pipes judgement – with its now limited applicability – to section 34 proceedings for the setting aside of a domestic arbitral award. The Supreme Court in Oil and Natural Gas Corporation v Western Geco,[26] while examining the ambit of the term public policy, affirmed the SAW Pipes ruling and further held that the ‘fundamental policy of Indian Law’, was a concept that included three basic principles: firstly that a ‘judicial approach’ was adopted in the making of the award, secondly that the principles of natural justice were followed by the Tribunal and lastly, that the award was not so perverse and unreasonable that it offended the conscience of the Court. To test whether the award was unreasonable, the Court applied the test of reasonableness, as was famously propounded in the Wednesbury[27] case. The test laid down by Lord Justice Diplock is that a decision would be considered unreasonable if it was ‘so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question could have arrived at the conclusion’. Continue reading The Unruly horse of Indian Arbitration: The evolution of Public Policy under sections 34 and 48 of the Arbitration and Conciliation Act 1996.

Judicial Evolution of the Right to Privacy and the Aadhar conundrum by Harish Jayakumar, HNLU

The Industrial Revolution picked up steam at the turn of the 19th century and the world underwent a decisive change forever. Almost 200 years later, the world is similarly being transformed by the Technological Revolution. It has been instrumental in propelling us into the Information Age where the proliferation of knowledge has never been greater. However, while the benefits are numerous and immense in their scale, there are equally vital concerns ranging from privacy to data-protection to which a search for an effective solution is still ongoing. One needs to understand the significance of technology because the current and future notions of privacy hinges on how modern society shapes itself to this technological change. Our right to privacy is not the same definition that existed in the ancient era and is constantly evolving and adapting with the times. Previously, the notion of privacy was restricted to the idea of protecting one’s person and property from torts such as trespass[1]. Now, the right to privacy has evolved completely to encapsulate not just privacy in the physical state but also to privacy in the spiritual and intellectual state as well[2].

In India, defining the right to privacy and its extent is more complicated because the Indian Constitution does not guarantee a specific right to privacy. Though the Supreme Court in various judgements has affirmed indeed that a right to privacy is an inherent right and that it flows naturally from the Right to Life and Personal Liberty, it is still a matter of contention. This has created consternation because the right to privacy is an important and inalienable right inherent to every Indian citizen but this is being offset by the State’s need to balance its national security interests. Most recently, the debate around the right to privacy has arisen around the Aadhaar which is a unique 12-digit identity number exclusive to every Indian[3] which is issued by the central government agency known as the Unique Identification Authority of India (henceforth UIDAI). The purpose of the Aadhaar is akin to what the role is of the social security number in the United States. It qualifies as a valid ID for availing various important government services and to receive government subsidies.

The controversy around Aadhaar is because the UIDAI collects the biometric and demographic data of the residents and stores this in a centralized database. This poses a serious risk to the right to privacy of each individual as it is now possible to categorize everyone in society by analyzing their biometric information. This is notwithstanding the fact that this information is in a centralized database which is a major security concern. The safeguards that have been introduced by the government in order to ostensibly protect the information of the citizens are also wholly inadequate and laughable by international standards. The implementation of the project has not taken place smoothly and has been ridden with a slew of controversies which raises questions regarding the efficacy of the government’s methods. The Aadhaar has been introduced by the government to provide many of their most important services and subsidies through the Public Distribution System (PDS). It is directly transferred to the lower strata of society in order to eliminate the middlemen and the constant leakages that plague the system. Also as of May 2016, almost 101 crore Aadhaar cards have been issued and 97% of adults possess an Aadhaar card[4]. So, it is clear that the project is on its way to its completion. Therefore, there are two very important questions that arise from this. Firstly, is the right to privacy a fundamental right guaranteed under the Constitution and is the UIDAI or Aadhaar in violation of an individual’s right to privacy?

 

The Supreme Court’s stance

 

The evolution of the Right to Privacy did not start out positively in India. The first case before the court which addressed the Right to Privacy was in M.P. Sharma & Others vs. Satish Chandra, District Magistrate of Delhi & Others[5]. The case considered whether there were any constitutional limitations to the government’s search and seizure of people’s homes. Here, the headnote reads, “When the Constitution makers have thought fit not to subject such regulation to Constitutional limitations by recognition of a fundamental right to privacy, analogous to the American Fourth Amendment, we have no justification to import it into a different fundamental right by some process of strained construction.” The American Fourth Amendment states that it is the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”[6] An important point to be noted is that this does not pertain to the entire right to privacy. It only deals with a part of it, namely the protection of people against search and seizure. Following this is Kharak Singh vs State of Uttar Pradesh[7] which dealt with the physical surveillance of ‘history sheeters’. In this case also, the right to privacy was not recognized. The judgement begins stating that “as already pointed out, the right to privacy is not a guaranteed right under our constitution.”[8] Though, the saving grace here is “as already pointed out” which refers to an earlier section of the judgement where the Court quotes the US Fourth Amendment, and then declares that the Constitution does not confer any ‘like constitutional guarantee’[9] following the ratio of the M.P. Sharma Case. It is clear that both these cases don’t refer to right to privacy as a whole. The Attorney General, Mr. Mukul Rohatgi provoked a huge controversy when he stated in the Supreme Court that Right to Privacy is not a right provided by the Constitution while defending the claim that the Aadhaar violated the Right to Privacy on the basis of these 2 cases[10]. This was a technical error on the Attorney General’s part as both of these cases deal with the question of whether the US Fourth Amendment can be read into the Indian Constitution and not about the whole right to privacy. The 2 cases discussed above don’t rule out a broad constitutional right to privacy as the right to privacy is a bundle of rights not limited to only surveillance or search and seizure. Also, in the minority judgement of the Kharak Singh case, Justice Subba Rao recognized the need for a right to privacy under Article 21 and set the foreground for shaping the right to privacy under Article 21.

In subsequent years, small bench judges expanded the position of the right to privacy. In Govind vs State of Madhya Pradesh[11] which also dealt with the surveillance of ‘history sheeters’, the Court held that the surveillance by various means is not violative of Article 21 of the Constitution as it was a regulation according to “procedure established by law.”[12] However, it recognized the right to privacy in a limited context and allowed that it should be developed on a case-by-case basis. The true break for the Right to Privacy came with the celebrated Maneka Gandhi[13] case which greatly expanded the ambit of Article 21. In the judgement, Justice Bhagwati observed, “The expression ‘personal liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights which go to constitute the personal liberty of man and some of them have raised to the status of distinct fundamental rights and given additional protection under Article 19.” Thus, the Court had held Article 21 to be controlled by Article 19 binding the two important rights together. This also meant that the ambit of right to privacy had greatly increased and could now be interpreted in a much more liberal manner. So, following this in R. Rajagopal vs State of Tamil Nadu[14]  the apex court observed, “The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a right to be let alone. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child bearing and education among other matters.[15]” Therefore, these final cases represented a decisive shift in the court’s ratio towards the right to privacy. Previously, the court took a cautious stance and interpreted the law in a positive manner following the text of the Constitution. With the liberalization of the country during the early 90s, the Court also followed suit as observed in R. Rajagopal and took favorable interpretations of the right to privacy.

The Evolution of the Aadhaar Project

The need for issuing every citizen an identity card and number had started during the Vajpayee years itself. It was then taken up the subsequent UPA government which established the UIDAI as an attached office of the Planning Commission in 2009. As stated above, the purpose of the Aadhaar is to issue a unique 12-digit number to all residents of India in the form of the Aadhaar card which will serve as the primary proof of identity anywhere across India. This card would contain their biographic and demographic information such as photograph, ten fingerprints and two iris scans which would then be stored in a centralized database[16]. In the beginning, the Aadhaar was created in order to weed out illegal aliens but this has changed to focus it as a development initiative[17]. In its current form, Aadhaar is part of the government’s flagship JAM Trinity (Jan Dhan, Aadhaar and Mobile Banking) by which the government seeks to provide its services to the people using these as the medium in a more efficient, effective and economical way. Aadhaar is the lynchpin of this program and some of the government programs which can be availed using the Aadhaar card include procuring an LPG connection, subsidized rations from the PDS, and benefits under NSAP pension schemes, obtaining a SIM card or opening a bank account[18]. The importance of the Aadhaar is therefore clear and India needs such an identity card so that the beneficial schemes that the government implement reaches those that need it the most.

Troubling Concerns

The Aadhaar has gone through a slew of controversies since its inception and this has raised many vital concerns. Until March 2016, the Aadhaar did not even have legislative backing and the entire project continued to run only on the basis of an executive order[19]. It was only on March 11, 2016 that the Parliament passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, benefits and services) Act, 2016. Even this was not without controversy as the Bill was introduced as a money bill in order to bypass the Rajya Sabha where the ruling government did not have a majority.

Another controversy is the so-called “voluntary” nature of the Aadhaar card. In March 2014, the Supreme Court passed an interim order declaring that the Aadhaar is not mandatory and no one should be forced to use it to avail government services[20]. However, the government fosters the illusion that an Aadhaar is absolutely necessary and one must register their bank accounts with their Aadhaar number in order to avail its various facilities. Indeed, it was only after the Supreme Court passed its orders declaring that no one should be denied services for want of an Aadhaar that the government made statements stating that it was voluntary[21]. In fact, some of the government’s most important schemes such as Jan Dhan Yojana, Ration Card & LPG Subsidy and Mobile Numbers don’t even require the use of an Aadhaar. Therefore, it begs the question as to why the government is so focused on promoting it as a mandatory requirement and it raises concerns about their need to profile the citizens.

This leads us to the most important issue regarding Aadhaar which is privacy or the lack of it in the entire Aadhaar project. The main danger is that it opens the door to mass surveillance because Most of the “Aadhaar-enabled” databases will be accessible to the government[22]. This brings to mind the Snowden leaks in 2013 which revealed that the US government was extensively spying on its own citizens in the guise of “protecting national interests”. Another important concern that has been raised is the method and process of data collection. The UIDAI has enlisted the services of several private subcontractors in order to collect the data which greatly increases the possibility of leakages of data occurring[23]. They are also not responsible to Indian law for data collation and this greatly exacerbates the threat to the right to privacy. Lastly, there is the use of the centralized database which keeps the record of all the biometric and demographic information of each citizen. This has been a great concern because of 2 reasons. Firstly, the data is in the hands of the government which can then use it in order to categorize the people in society. Also, there is the possibility that data leaks may arise from this centralized database because there is as yet, no foolproof system in place to guard against breach of data from the private players despite the UIDAI’s claims that it has robust security measures in place[24].

The UIDAI had an opportunity to implement the Aadhaar for the noble purpose of setting up an effective Public Distribution System and also a pan-India identity card for any transaction throughout the length and breadth of the country. While this has ostensibly been done in some respects, it has also come at a great cost. The government has in the background created a big-brother like situation where they are poised to misuse this data for mass surveillance and profile the citizens in the country. In the world’s largest democracy, such a fundamental violation of a natural right is deeply regrettable.

Conclusion

 

Let us be clear that an absolute right to privacy is impossible in this day and age. It is a fact that somehow, somewhere, we are bound to be identified and categorized in some respect. With technology pervading and becoming an intrinsic part of our lives, it is not possible to truly enjoy a complete right to privacy. However, this does not mean that the right to privacy should be made inviolable to allow mass surveillance by a government. There are still certain fundamental tenets about the right to privacy that must be respected and protected at all costs. Therefore, this presents a new question to the social contract: Does a citizen forsake one’s right to privacy in order to safeguard national security interests? The answer is undoubtedly no because this is a right that is an essential constituent of personal liberty and also to enjoy a free and fruitful life. The Supreme Court is currently deliberating over whether the Right to Privacy constitutes a fundamental right and one only hopes that they declare a positive affirmation firmly entrenching it so. This is important because going forward technology is going to play an even more important role in lives of people. Therefore, stringent declarations protecting the rights of people in case of data protection and privacy violations will become all the more important. By setting a precedent right now, it will help the future generations to expand upon the doctrine. Laying ironclad precedents also sends a message to the government to not tamper with the rights of citizens from the start and conduct their policies respecting these principles. It also ensures that projects such as Aadhaar which are in danger of grossly violating an individual’s right to privacy are never again conducted in the manner that they have been. The Aadhaar is currently poised to be one of the government’s most successful initiatives considering the amount the government has saved plugging leakages in the PDS and directly helping the people who are below poverty line. However, the government is the caretaker of the people and they should be providing the best possible safeguards if they are undertaking any measure that may compromise on an individual’s right. It is regrettable that the same cannot be said of the Aadhaar which stands as a threat to the right to privacy of every citizen. So, it is up to the people to put pressure on the courts and the Parliament alike so that they can take cognizance of the needs of the people and the need of the law to adapt to changing times and their responsibility to ensure that it happens in the free and democratic tradition that this country was founded upon.

 

[1] Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4(5) HARVARD LAW REVIEW 193, 193 (1890).

[2] Hinailiyas, Right to Privacy under Article 21 and the Related Conflicts (January 22, 2014), LEGAL SERVICES INDIA, available at http://www.legalservicesindia.com/article/article/right-to-privacy-under-article-21-and-the-related-conflicts-1630-1.html (Last visited on June 2, 2016).

[3] V Nalinakanthi, All you wanted to know about the Aadhaar Bill, THE HINDU BUSINESS LINE (March 21, 2016), available at http://www.thehindubusinessline.com/opinion/columns/all-you-wanted-to-know-about-aadhaar-bill/article8381808.ece (Last visited on June 9, 2016).

[4] UIDAI (2009), Aadhaar Generation Progress in India, Aadhaar by Ages & Gender, and Aadhaar by Trend (Bar Graph) available at https://portal.uidai.gov.in/uidwebportal/dashboard.do (Last visited on April 30, 2016).

[5] M.P Sharma & Others v. Satish Chandra, District Magistrate of Delhi & Others, AIR  1954 SC 300 (Supreme Court of India).

[6] Amendment IV, THE CONSTITUTION OF THE UNITED STATES OF AMERICA, 1787.

[7] Kharak Singh vs State of UP, AIR 1963 SC 1295

[8] Id., at 13.

[9] Chinmayi Arun, A Basic Right is in Danger, THE HINDU (July 31, 2015), available at http://www.thehindu.com/opinion/op-ed/a-basic-right-is-in-danger/article7482874.ece (Last visited on June 9, 2016).

[10] PTI, Right to Privacy cannot be a Fundamental Right: Centre Tells Supreme Court, ECONOMIC TIMES (July 23, 2015), available at http://articles.economictimes.indiatimes.com/2015-07-23/news/64773078_1_fundamental-right-attorney-general-mukul-rohatgi-privacy (Last visited on June 7, 2016).

[11] Govind vs State of Madhya Pradesh, (1975) 2 SCC 148 (Supreme Court of India).

[12] Id., at Para 176.

[13] Maneka Gandhi vs Union of India, (1978) 2 SCR 621 (Supreme Court of India).

[14] R.Rajagopal vs State of Tamil Nadu, (1994) 6 SCC 632 (Supreme Court of India).

[15] Id., at 26.

[16] TNN, Learning with the times: What is Aadhaar?, THE TIMES OF INDIA (4th October  2010), available at: http://timesofindia.indiatimes.com/india/Learning-with-the-Times-What-is-Aadhaar/articleshow/6680601.cms (Last visited on June 9, 2016).

[17] Tusha Mittal, Falling between the barcodes, TEHELKA (20th August 2009), available at http://www.tehelka.com/2009/08/falling-between-the-barcodes/?singlepage=1 (Last visited on June 9, 2016).

[18] Seetha, There is a Privacy Issue with the Aadhaar Card, SWARAJAYA (July 29, 2015), available at  http://swarajyamag.com/politics/there-is-a-privacy-issue-with-the-aadhar-card (Last visited on June 9, 2016).

[19] Ruhi Tiwari, Aadhaar legal, valid under Constitution: Centre tells SC, THE INDIAN EXPRESS (February 12, 2015), available at http://indianexpress.com/article/india/india-others/aadhaar-legal-valid-under-constitution-centre-to-tell-sc/ (Last visited on June 9, 2016).

[20] Krishnadas Rajagopal, Don’t insist on Aadhaar, warns SC, THE HINDU (March 16, 2015), available at http://www.thehindu.com/news/national/aadhaar-not-mandatory-sc-reiterates/article6999924.ece (Last visited on June 9, 2016).

[21] Dhananjay Mahapatra, Aadhaar use will be voluntary, says government, THE TIMES OF INDIA (October 15, 2015), available at http://timesofindia.indiatimes.com/india/Aadhaar-use-will-be-voluntary-says-government/articleshow/49366557.cms (Last visited on June 9, 2016).

[22] Jean Dreze, The Aadhaar Coup THE HINDU (March 15, 2016), available at http://www.thehindu.com/opinion/lead/jean-dreze-on-aadhaar-mass-surveillance-data collection/article8352912.ece (Last visited on June 9, 2016).

[23] Rajeev Chandrasekhar, A Shaky Aadhaar INDIAN EXPRESS (October 1, 2015), available at http://indianexpress.com/article/opinion/columns/a-shaky-aadhaar/ (Last visited on June 9, 2016).

[24] Usha Ramanathan, Who Owns the UID Database? MONEYLIFE (April 30, 2013), available at http://www.moneylife.in/article/aadhaar-who-owns-the-uid-database-ndashpart-ii/32440.html (Last visited on June 9, 2016).