(An application under Article 226 and 227 of the Constitution of India) v. State of Odisha

Heard Mr. A. Jebraj, learned counsel for the Petitioner, Mr. S. Behera, learned Addl. Government Advocate for the State, Mr. P.K. Parhi, learned DSGI for Union of India with Mr. D. Gochhayat, CGC and Mr. S.K. Sarangi, learned Senior counsel with Mr. S. Sarangi for Sai International School (Opposite Party No.5).

10. Mr. Jebraj would argue that though projected as voluntary in nature, the absence of any enabling clause the consent to be submitted by students/parents implies that it is mandatory. Unless there is a specific clause giving an option to the students/parents to opt out of the initiative or to refuse to give their consent, it would violate the fundamental principles relating to their right to privacy. Unless the linkage of Aadhaar is made voluntary and students/parents are not compelled to share such data, W.P.(C) No.8285 of 2025 Page 11 of 20 there would be no guarantee that such valuable personal data would not be compromised. Mr. Jebraj further contends that a 5-Judge Bench of the Supreme Court in the case of K.S. Puttaswamy (Supra) held that the fundamental right to education under Article 21-A of the Constitution could not be made subject requirement of an Aadhaar Card, as there is a need to specially protect the privacy of children. The State has a constitutional duty to enable parents and guardians to assert the rights of children and act in their best interest. Mr. Jebraj also argues that though Section 6(1) of the Digital Personal Data Protection Act, 2023 is yet to come into force and is scheduled to be notified within the next 18 months, its principles stand violated by insisting upon creation of APAAR ID. The conduct of the concerned authorities in initiating aggressive enrolment programmes without any provision for opting out makes the initiative mandatory in nature, which cannot be countenanced in law.

11. Mr. P.K. Parhi, learned DSGI submits that from all the communications, instructions and guidelines issued W.P.(C) No.8285 of 2025 Page 12 of 20 by the MoE, it would be evident that creation of APAAR ID of the students is a voluntary initiative and the parents can always opt out of the Scheme. The model consent form contains a specific clause permitting withdrawal of consent once given and in such event, the processing of the said information shall stop. There is no question of forcing anyone to opt for the scheme.

12. Mr. Behera, learned Addl. Government Advocate for the State, would argue that the State authorities have acted entirely in line with the instructions issued by the MoE and not on their own. He further argues that there is no question of forcing any person to submit personal information in the form of Aadhaar for creation of APAAR ID. The students/parents can always refuse their consent.

13. Mr. S.K. Sarangi, learned Senior counsel would argue that the School has issued the letter in question acting in terms of the Government instructions. The School has itself not insisted upon any student/parent to submit Aadhaar details mandatorily. It is always open to W.P.(C) No.8285 of 2025 Page 13 of 20 the students/parents to not comply with such requirement. Analysis and findings of the Court.

14. The first thing that becomes apparent upon considering the rival contentions is that the present case is not adversarial in nature at all. This is being said for the reason that while the Petitioners apprehend that the APAAR initiative is a mandatory one; all the Opposite Parties have unequivocally stated that the same is voluntary in nature. In such view of the matter, it would not be necessary for this Court to examine the relevant orders/guidelines/instructions issued by the Central and State Governments to see whether the initiative is voluntary or mandatory in nature. But then, certain apprehensions have been raised by the Petitioners mainly to the effect that though projected as voluntary, in the absence of an option to not submit to the scheme, it, in effect, becomes mandatory in nature.

15. Before proceeding further, it would be proper to keep in perspective the law laid down by the Supreme Court with regard to the children’s right to privacy in W.P.(C) No.8285 of 2025 Page 14 of 20 K.S. Puttaswamy (Supra). The following observations would be relevant: “380. We have held that Aadhaar is a voluntary scheme and, therefore, the Aadhaar number is to be alloted to an individual on his “consent”. No doubt, for the purposes of utilising any of the benefits under Section 7 of the Aadhaar Act, it becomes necessary to have Aadhaar number. However, the question is as to whether it can be extended to children? It is more so when they are not under legal capacity to provide any “consent” under the law. 381. Article 21-A of the Constitution guarantees right to education and makes it fundamental right of the children between 6 years and 14 years of age. Such a right cannot be taken away by imposing requirement of holding Aadhaar card, upon the children. 382. In view thereof, admission of a child in his school cannot be covered under Section 7 of the Aadhaar Act as it is neither subsidy nor service. No doubt, the expression “benefit” occurring in Section 7 is very wide. At the same time, it has to be given restrictive meaning and the admission of children in the schools, when they have fundamental right to education, would not be covered by Section 7, in our considered view. The respondents made an attempt to justify the linkage of Aadhaar with child information and records by arguing that there have been several instances of either impersonations at examinations or bogus admissions which have the to pilfer away various scholarship potential schemes which weaker sections from time to time. If this is the objective, then also requirement of Aadhaar cannot be insisted at the time of admission but only at the stage of application for government scholarships. Insofar as that can be easily checked and concerned, contained by other means with effective checks and balances. When there are alternative means, insistence on Aadhaar would not satisfy the test of proportionality. This would violate the privacy right of the children importance whereto is given by the impersonation at examination the Government provides W.P.(C) No.8285 of 2025 Page 15 of 20 L. Constitution Bench in K.S. Puttaswamy [K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1] in the following words: (SCC p. 630, para 633) “633. Children around the world create perpetual digital footprints on social network websites on a 24/7 basis as they learn their “ABCs”: Apple, Bluetooth, and Chat followed by download, e-mail, Facebook, Google, Hotmail, and [ Instagram. Michael SannaKulevska, Rustad, “Reconceptualizing the right to be forgotten to enable transatlantic data flow”, (2015) 28 Harv JL & Tech 349.] They should not be subjected to the consequences of their childish mistakes and naivety, their entire life. Privacy of children will require special protection not just in the context of the virtual world, but also the real world.” 384. It has to be kept in mind that when the children are incapable of giving consent, foisting compulsion of having Aadhaar card upon them would be totally disproportionate and would fail to meet the proportionality test. As the law exists today, a child can hold property, operate a bank account, be eligible to be a nominee in an insurance policy or a bank account or have any financial transaction only through a legal guardian who has to be a major of sound mind. In cases where a child is in conflict with the law, the child is given a special criminal trial under the Juvenile Justice (Care and Protection of Children) Act, 2015 and there is a mandatory requirement for the records to be kept confidential and destroyed so that the criminal record of the child is not maintained. This is the position in law contained in Section 11 of the Contract Act, 1872, Section 45-ZA of the Banking Regulation Act, 1949, Section 39 of the Insurance Act, 1938, Section 90 of the Penal Code, 1860 (which provides that consent of the child who is under 12 years of age shall not be regarded as consent), etc. Thus, when a child is not competent to contract; not in a position to consent; barred from transferring property; prohibited taking employment; and not allowed to open/operate bank accounts and, as a consequence, not in a position to negotiate her rights, thirsting upon compulsory requirement of holding Aadhaar would be an inviable inroad into their fundamental rights under Article 21. The restriction imposed on such a W.P.(C) No.8285 of 2025 Page 16 of 20 right in the form of an Aadhaar cannot be treated as constitutionally justified.”

16. The consent form appended to the letter dated

11.10.2023 shall now be examined. The same reproduced below for convenience: W.P.(C) No.8285 of 2025 Page 17 of 20

17. According to the learned DSGI, the last clause permitting the parent to withdraw consent is adequate to assuage the apprehension of the Petitioners. Similar argument is made by the State counsel. Learned counsel for the Petitioners however, disagrees by submitting that the aforesaid clause would come into play only after the consent has been given. The question is not so much regarding the permissibility of withdrawal of consent at the subsequent stage than giving of consent at the first instance. Similar consent form has been enclosed to letter dated 21.9.2024 of the State Project Director, OSEPA. The same form has also been enclosed to letter dated 28.12.2024 of Sai International School.

18. A careful reading of the different clauses of the consent form reveals that there is no option to refuse consent at the initial stage. Nothing has been placed on record as to the consequence that would entail upon refusal of a parent to submit the consent form. The withdrawal of consent as per the last paragraph of the consent form cannot be treated as giving an effective right to the parent to protect his privacy because by such W.P.(C) No.8285 of 2025 Page 18 of 20 time the consent would already have been given. What the Petitioners are concerned with is the right to refuse consent altogether at the outset. Since the right to privacy is a fundamental right and though not absolute can only be subject to reasonable restrictions, the same has to be protected and respected by the State at all costs. As already stated above, the principle was acknowledged and reiterated in no uncertain terms by the Supreme Court in K.S. Puttaswamy (Supra). Since the concerned authorities agree in unison that the initiative is voluntary in nature, this Court can only agree with the argument advanced by the learned counsel for the Petitioners that the model consent form has not been worded strictly in consonance with the avowed objective of making the scheme voluntary. In other words, the model consent form does not appear to have been happily worded in this respect at all. If it is intended to be a voluntary act, appropriate provisions clearly specifying such fact ought to have been incorporated in the form by providing option to the parents to refuse to submit their consent or to opt out of W.P.(C) No.8285 of 2025 Page 19 of 20 it entirely. Learned counsel for the Petitioners has submitted a model consent form containing a refusal of consent clause. This Court has perused the same and finds it to be in consonance with the professed stand of the authorities regarding voluntary nature of the scheme. There is no reason why such a clause cannot be incorporated in the model consent form.

19. Thus, from a conspectus of the analysis made hereinbefore, this Court finds that the Petitioners have made out a good case for interference by this Court. Resultantly, the Writ Petition is allowed. The opposite party-authorities are directed to consider amendment of the model consent form to include an opt out/refusal of consent option therein. The model consent incorporating such changes as provided by learned counsel for the Petitioners to the learned DSGI may also be considered. Necessary orders in this regard shall be passed within two months from today. …………….……………. Sashikanta Mishra, Ashok Kumar Behera Judge Signature Not Verified Digitally Signed Signed by: ASHOK KUMAR BEHERA Reason: Authentication Location: High Court of Orissa, Cuttack Date: 12-Dec-2025 17:36:57 W.P.(C) No.8285 of 2025 Page 20 of 20