In Justice K.S. Puttaswamy (Retd.) v. Union of India, 2018 INSC 880, Hon’ble Dr. Justice D.Y.…

In Justice K.S. Puttaswamy (Retd.) v. Union of India, 2018 INSC 880, Hon’ble Dr. Justice D.Y. Chandrachud has held, inter alia, as follows:

190. In the 2003 edition of his celebrated work, Granville Austin recounts the words of Prime Minister Morarji Desai that freedom and bread are not incompatible, but further adds, ‘Neither could they easily be sought together’. As mentioned earlier, Granville Austin had insightfully spoken about how the strands of the Constitution of unity-integrity, democracy and social revolution could come in conflict with one another creating challenges for those who work with the Constitution. Some of the questions inherent in the Constitution according to him are “Democracy for whom? Justice for whom? What is Justice? What are the appropriate means of employing the Constitution’s means’ among citizens, between them and their government?” It was due to the foresight of the framers of the Constitution that they insisted that neither the strand of social revolution nor the strand of democracy was to be pursued at the expense of the other. The ostensible conflict between bread and freedom has also been explored in the works of Professor Upendra Baxi. In a seminal essay on human rights in 1984 which he calls the “the great gift of classical and contemporary human thought to culture and civilization”, he discusses the widening sphere of human rights thought and action to new arenas and constituencies as “New rights arise from the womb of the old.” He draws on the distinction between basic human needs and human rights and argues that the constant struggle between these two forces is the essence of the difference between the right to be human approach and the human rights approach.…He opines that whatever meaning maybe ascribed to the term “development”, it must ensure that people will not be deprived of the right to remain human:

“Whatever it may be made to mean, “development” must at least mean this: people will be given the right to be and remain human. Total and continuing destitution and impoverishment exposes people to a loss of their humanity. In no society that takes human rights seriously should there be allowed a state of affairs where human beings become subhuman—that is, when they perforce have to surrender even those sonorously recited “inalienable” rights of man… The expression “human rights” presupposes a level at which biological entities are bestowed with the dignity of being called human. The bearers of human rights must have an implicit right to be and remain human, allowing them some autonomy of choice in planning survival.”

Thus, the broader matrix of human rights includes within it the inalienable and fundamental right to always ‘be and remain human’. Professor Upendra Baxi notes that this broader debate between human rights and the ‘right to be human’ is reflective of the bread vs. freedom conflict. It is noted that historically, freedom might have been chosen over bread due to the vast enumeration of liberal rights it includes, despite the acute awareness that without bread, freedom of speech and assembly, of association, of conscience and religion, of political participation, symbolic adult suffrage may all be meaningless. At the same time, Baxi points out the danger in choosing bread at the cost of freedom, given that historically in the absence of freedom, human beings have been subject to the most egregious indignities: “The provision of “bread” may justify indefinite postponement of the provision of any kind of “freedom”. In the absence of such freedom, even the promised “bread” may not be realized by the masses; indeed, they even lose, in the process, their power to protest at the indignity of regime sponsored starvation….Baxi concludes that the choice between bread and freedom is a false antithesis. The challenge is not a choice in the abstract between bread and freedom but rather the balancing of the two…… It is the foremost duty of the State to work towards achieving and maintaining a fine balance, taking into account these myriad considerations. The State must always be guided by the knowledge and sense of duty that in a true democracy, the citizens cannot be made to choose between rights and needs, as they are equally entitled to both. As the sentinel of justice and protector of fundamental rights, it is the responsibility of this Court to act as a check and ensure that government action or inaction does not endanger or threaten to disturb the balance that the Constitution seeks to achieve. It is imperative to remember that both ‘bread’ and ‘freedom’ play a vital role in the guaranteeing to our citizens the gamut of human rights and freedoms that make human existence meaningful.

196. These decisions indicate that the process of resolving conflicts arising out of the assertion of different fundamental rights and conflicts within the same fundamental right, necessarily involves judicial balancing. In finding a just balance this Court has applied norms such as the ‘paramount public interest’. In seeking to draw the balance between political freedoms and economic freedoms, the Court must preserve the euphony between fundamental rights and directive principles. It is on their co-existence that the edifice of the Constitution is founded. Neither can exist without the other….. Economic rights have become justiciable because of the constitutional guarantees founded on freedom and the rule of law. The Constitution is founded on democratic governance and is based on the protection of individual freedom. Freedom comprehends both fundamental political freedoms as well as basic human rights. A just balance between the two is integral to the fulfilment of India’s constitutional commitment to realise human liberty in a social context which is cognizant of the histories of discrimination and prejudice suffered by large segments of our society. Where the question is related to the limiting the right to privacy, Puttaswamy requires the test of proportionality. It has, therefore, to be tested whether the Aadhaar scheme fulfils the test of proportionality.

197. The test of proportionality, which began as an unwritten set of general principles of law, today constitutes the dominant “best practice” judicial standard for resolving disputes that involve either a conflict between two rights claims or between a right and a legitimate government interest…..It has been raised to the rank of a fundamental constitutional principle, and represents a global shift from a culture of authority to a culture of justification…...

198. Subjecting the Aadhaar scheme to the test of proportionality does not mean that the Court is second-guessing the wisdom of the legislature. State action must be subjected to judicial scrutiny to ensure that it passes constitutional muster. The test of proportionality stipulates that the nature and extent of the State’s interference with the exercise of a right (in this case, the rights to privacy, dignity, choice, and access to basic entitlements) must be proportionate to the goal it seeks to achieve (in this case, purported plugging of welfare leakage and better targeting).

250. The Constitution recognizes, through the rights which it protects, a multitude of identities and the myriad forms of its expression. Our political identities as citizens define our relationship with the Nation State. The rights which the Constitution recognizes as fundamental liberties constitute a reflection of the identity of the self.…Identity at a constitutional level is reflected in the entitlement of every individual, protected by its values, to lead a way of life which defines the uniqueness of our beings. The Constitution recognizes a multitude of identities, based on the liberties which it recognizes as an inseparable part of our beings. To be human is to have a multitude of identities and be guaranteed the right to express it in various forms. The State which must abide by a written Constitution cannot require any person to forsake one or more identities. Constitutional freedoms compel the state to respect them.

Based on the reading of the above extracts, which one of the following statements is the most accurate statement?