HT This Day: September 27, 2018 — Aadhaar Public, Limited
A majority judgment of a Constitution Bench of the Supreme Court on Wednesday upheld the constitutional validity of Aadhaar, but restricted its use to government welfare schemes funded by the Consolidated Fund of India, in a verdict that the government and the Opposition immediately owned.
The judgment, however, scrapped, wrote down, or amended key clauses in the UIDAI Act to protect the rights of individuals and prevent misuse of their details, ensuring a partial victory for petitioners.
Bank accounts and mobile phone numbers now no longer need to be linked to Aadhaar; and transaction details will now only be kept for six months, as against five years as the law originally mandated.
Both the majority and the minority judgments also said decisions of the Speaker could be reviewed judicially, a response to one petition against the government’s definition of the UIDAI bill as a money bill, thereby ensuring that it needed to be passed only by the Lok Sabha, where the National Democratic Alliance (NDA) has a majority.
The majority judgment, however, refused to overturn the government’s decision to define this bill as a money bill.
The five-judge Constitution Bench led by Chief Justice of India (CJI) Dipak Misra in a 4:1 verdict also added that children cannot be denied school admissions for want for Aadhaar, and asked for ways to deal with exclusions, but said the number would be required for filing income-tax returns, making it necessary to link it with PAN cards.
Justice AK Sikri, who authored the main verdict on behalf of CJI Misra and justice AM Khanwilkar, held: “The whole architecture of Aadhaar is devised to give unique identity to the citizens of this country.”
Human dignity, he said, is to be treated as a fundamental right and the scheme envisaged under Aadhaar ensures dignity to the marginalised sections of society.
“This facet of dignity cannot be lost sight of and needs to be acknowledged,” he said.
The court also struck down section 57 of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, that permitted corporate entities such as telecom companies to avail biometric Aadhaar data. Such a provision had no rationale nexus to the objective of the law, the court said.
Union law and IT minister Ravi Shankar Prasad said in an interview that the telecom and
finance ministries would work with banks and telcos to ensure they erased the data of those who have already completed the linkages.
However, Prasad also left a window open for the government and said its understanding was
that it could, with legislative backing, insist on such linkages.
This view was separately echoed by Unique Identification Authority of India (UIDAI) CEO
Ajay Bhushan Pandey.
The court said Aadhaar intends to plug loopholes and stem corruption while reaching out to the poor and underprivileged.
To this extent, the court said, the law also qualified the test of proportionality because the aim behind the programme was legitimate. Government claims it saved ₹90K crore , a number disputed by activists.
Keeping in view the larger public interest, collection of biometrics such as iris scan and fingerprints under the program was a minimal invasion into the privacy rights, the court held. “By no means it can be said that it has disproportionate effect on the right holder,” the order said.
Identity bestowed by Aadhaar is unparalleled and “we find that the Aadhaar Act has struck a fair balance between the right of privacy of the individual with right to life of the same individual as a beneficiary,” said the judgment which relied heavily on the Right to Privacy judgment delivered last August.
The sole dissenting judge on the bench, justice DY Chandrachud, declared the law as unconstitutional. Clearing it as a money bill was a fraud played on the Constitution, he said. Justice Ashok Bhushan, who wrote a separate ruling, endorsed the view taken in the majority verdict.
The SC verdict, running into 1,448 pages, came on batch of 31 petitions with the first one being filed in 2012 when the executive order introducing Aadhaar was challenged before the court. The first petition was filed by former Karnataka high court judge KS Puttaswamy. Subsequently, several activists joined the fray.
In 2016, the NDA government brought in a law and pushed Aadhaar enrolment in a big way for its welfare programmes. The hearing continued for 38 days, spanning over four months,
before the judgment was reserved on May 10.
Advocates say the hearing was the “second longest” one in terms of days of hearing after the Kesavananda Bharati case of 1973.
Still, even as it found no fault with the Aadhaar law, the court insisted on safeguards. It ordered data cannot be stored for more than six months and also directed the government not to give Aadhaar to illegal immigrants. The provision that allowed access of data for national security, too, was struck down.
The court said that if the government wants to reformulate this provision then a joint secretary-level officer and a judicial officer should be members of the oversight committee to hear complaints against sharing of data.
The court rejected the argument that Aadhaar could lead to real-time surveillance, calling it
‘far-fetched’. Information of an individual can’t be released with-out hearing him or her, it said.
Finance minister Arun Jaitley hailed the verdict as historic, while law minister Prasad said it
Welcoming the verdict, Congress leader Kapil Sibal told reporters his party supports the
views of justice Chandrachud. Sibal said it will certainly move court if amendments in the Aadhaar Act brought after this verdict are not brought in Rajya Sabha for discussion. Bengal
chief minister Mamata Banerjee welcomed the verdict and termed it as a victory of the people.
Advocate Udayaditya Banerjee, who represented the petitioners before the court, said the
judgement will enable citizens to de-link their Aadhaar from their bank accounts or mobile phone accounts. “Although the judgment does not say it expressly, the consequence is that one can de-link Aadhaar now,” he said.
The petitioners’ demand to delete data collected prior to the enactment of the law in 2016 was also turned down. The court said the problem can be solved by eliciting “consent” of all those persons enrolled prior to passing the act. “Since, we have held that enrolment is voluntary, those who specifically refuse to give the consent, they would be allowed to
exit from the Aadhaar scheme. Those who need to avail any subsidy, benefit or service would
need Aadhaar in any case. It would not be proper to cancel their Aadhaar cards,” the court
The court did not concur with the petitioners’ concern that Aadhaar should be shelved since
authentication failure of biometrics resulted in the exclusion of the needy. “We are only highlighting the fact that the government seems to be sincere in its efforts to ensure that no such exclusion takes place and in those cases where an individual who is rightfully entitled to benefits under the scheme is not denied such a benefit merely because of failure of authentication. In this scenario, the entire Aadhaar project cannot be shelved,” the court said.