What the judges said on Aadhaar: Unique makes you the only one
As the five judges on the bench write nuanced judgments on the identity project’s validity, here are some choice excerpts.india Updated: Sep 27, 2018 13:17 IST
CJI Dipak Misra, Justice A K Sikri and Justice AM Khanwilkar
It is better to be unique than the best. Because, being the best makes you the number one, but being unique makes you the only one. ‘Unique makes you the only one’ is the central message of Aadhaar, which is on the altar facing constitutional challenge in these petitions. ‘Aadhaar’ which means, in English, ‘foundation’ or ‘base’, has become the most talked about expression in recent years, not only in India but in many other countries and international bodies.
Today, mention of the word ‘Aadhaar’ would not lead a listener to the dictionary meaning of this word. Instead, every person on the very mentioning of this word ‘Aadhaar’ would associate it with the card that is issued to from where he/she can be identified.
It is described as an ‘Unique Identity’ and the authority which enrols a person and at whose behest the Aadhaar Card is issued is known as Unique Identification Authority of India (hereinafter referred to as ‘UIDAI’ or ‘Authority’).
It is described as unique for various reasons. UIDAI claims that not only it is a foolproof method of identifying a person, it is also an instrument whereby a person can enter into any transaction without needing any other document in support. It has become a symbol of digital economy and has enabled multiple avenues for a common man. Aadhaar scheme, which was conceptualised in the year 2006 and launched in the year 2009 with the creation of UIDAI, has secured the enrolment of almost 1.1 billion people in this country. Its use is spreading like wildfire, which is the result of robust and aggressive campaigning done by the Government, governmental agencies and other such bodies. In this way it has virtually become a household symbol. The Government boasts of multiple benefits of Aadhaar.
The architecture of Aadhaar as well as the provisions of the Aadhaar Act do not tend to create a surveillance state. This is ensured by the manner in which the Aadhaar project operates.
All matters pertaining to an individual do not qualify as being an inherent part of right to privacy. Only those matters over which there would be a reasonable expectation of privacy are protected by Article 21.
We are, by no means, accepting that when dignity in the form of economic welfare is given, the State is entitled to rob that person of his liberty. That can never be allowed. We are concerned with the balancing of the two facets of dignity. Here we find that the inroads into the privacy rights where these individuals are made to part with their biometric information, is minimal. It is coupled with the fact that there is no data collection on the movements of such individuals, when they avail benefits under Section 7 of the Act thereby ruling out the possibility of creating their profiles. In fact, this technology becomes a vital tool of ensuring good governance in a social welfare state. We, therefore, are of the opinion that the Aadhaar Act meets the test of balancing as well.
Insofar as the argument based on probabilistic system of Aadhaar, leading to ‘exclusion’ is concerned, the Authority has claimed that biometric accuracy is 99.76% and the petitioners have also proceeded on that basis. In this scenario, if the Aadhaar project is shelved, 99.76% beneficiaries are going to suffer. Would it not lead to their exclusion? It will amount to throwing the baby out of hot water along with the water.
The entire aim behind launching this programme is the ‘inclusion’ of the deserving persons who need to get such benefits. When it is serving much larger purpose by reaching hundreds of millions of deserving persons, it cannot be crucified on the unproven plea of exclusion of some.
It is clarified that the Court is not trivialising the problem of exclusion if it is there. However, what we are emphasising is that remedy is to plug the loopholes rather than axe a project, aimed for the welfare of large section of the society.
‘Benefits’ and ‘services’ as mentioned in Section 7 should be those which have the colour of some kind of subsidies etc., namely, welfare schemes of the Government whereby Government is doling out such benefits which are targeted at a particular deprived class. It would cover only those ‘benefits’ etc. the expenditure thereof has to be drawn from the Consolidated Fund of India. On that basis, CBSE, NEET, JEE, UGC etc. cannot make the requirement of Aadhaar mandatory as they are outside the purview of Section 7 and are not backed by any law.
For the enrolment of children under the Aadhaar Act, it would be essential to have the consent of their parents/guardian. Such children who are enrolled under Aadhaar with the consent of their parents, shall be given the option to exit.
Insofar as the school admission of children is concerned, requirement of Aadhaar would not be compulsory as it is neither a service nor subsidy.
Linking made compulsory not only for opening a new bank account but even for existing bank accounts with a stipulation that if the same is not done then the account would be deactivated, with the result that the holder of the account would not be entitled to operate the bank account till the time seeding of the bank account with Aadhaar is done. This amounts to depriving a person of his property.
We find that this move of mandatory linking of Aadhaar with bank accounts does not satisfy the test of proportionality.
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Justice Ashok Bhushan
The requirement under Aadhaar Act to give one’s demographic and biometric information does not violate the fundamental right of privacy. The provisions of Aadhaar Act requiring demographic and biometric information from a resident for Aadhaar number passes a three-fold test as laid down in the Puttaswamy case, hence cannot be said to be unconstitutional. Collection of data, its storage and use does not violate the fundamental right to privacy. Aadhaar Act does not create an architecture for pervasive surveillance. Aadhaar Act and Regulations provides protection and safety of the data received from individuals. Section 7 of the Aadhaar Act is constitutional. The provision does not deserve to be struck down on account of denial in some cases of the right to claim on account of the failure of authentication. The State, while enlivening Right to Food, Right to Shelter etc. envisaged under Article 21 cannot encroach upon the right of privacy of beneficiaries, nor former can be given precedence over the latter. Section 33 cannot be said to be unconstitutional as it provides for the use of Aadhaar database for police investigation nor it can be said to violate protection granted under Article 20(3).
Aadhaar’s inclusion into PAN is meant to curb tax evasion, sham transactions, entry providers which are rampantly carried out on account of bogus PANs. Aadhaar’s unique de-duplication based on biometric identification has been hailed as the most sophisticated system by the World Bank. Inclusion of Aadhaar into PAN eliminates the inequality between honest taxpayers and non-compliant, dishonest ones who get away without paying taxes. Inclusion of Aadhaar into PAN promotes rather than negates equality. It bolsters equality and is consistent with Art. 14.
Even if authentication under Aadhaar scheme is probabilistic as on date, we have no doubt that the steps will be taken to minimise the mismatch and to attain more accuracy in the result. Aadhaar Act has been rightly passed as a Money Bill. The decision of Speaker certifying the Aadhaar Bill, 2016 as Money Bill is not immune from Judicial Review. The petitioners are right in their submissions that for enrolment of a children between five and 18 years, there has to be consent of their parents or guardian because they unable to give any valid consent for enrolment.
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Justice D Y Chandrachud
Technology and biometrics are recent entrants to litigation. Individually, each presents specific claims: of technology as the great enabler; of biometrics as the unique identifier. As recombinant elements, they create as it were, new genetic material. Combined together, they present unforeseen challenges for governance in a digital age.
Part of the reason for these challenges is that our law evolved in a radically different age and time. The law evolved instruments of governance in incremental stages. They were suited to the social, political and economic context of the time. The forms of expression which the law codified were developed when paper was ubiquitous. The limits of paper allowed for a certain freedom: the freedom of individuality and the liberty of being obscure.
Introducing the Aadhaar Act as a Money Bill has bypassed the constitutional authority of the Rajya Sabha. The passage of the Aadhaar Act as a Money Bill is an abuse of the constitutional process. It deprived the Rajya Sabha from altering the provisions of the Bill by carrying out amendments. On the touchstone of the provisions of Article 110, the Bill could not have been certified as a Money Bill. The Rajya Sabha has an important role in the making of laws. Superseding the authority of the Rajya Sabha is in conflict with the constitutional scheme and the legitimacy of democratic institutions. It constitutes a fraud on the Constitution. The State is under a constitutional obligation to safeguard the dignity of its citizens. Biometric technology which is the core of the Aadhaar programme is probabilistic in nature, leading to authentication failures. These authentication failures have led to the denial of rights and legal entitlements.
Dignity and the rights of individuals cannot be made to depend on algorithms or probabilities. Constitutional guarantees cannot be subject to the vicissitudes of technology. Denial of benefits arising out of any social security scheme which promotes socioeconomic rights of citizens is violative of human dignity and impermissible under our constitutional scheme.
Allowing private entities to use Aadhaar numbers, under Section 57, will lead to commercial exploitation of the personal data of individuals without consent and could also lead to individual profiling. Profiling could be used to predict the emergence of future choices and preferences of individuals. These preferences could also be used to influence the decision making of the electorate in choosing candidates for electoral offices. This is contrary to privacy protection norms. Data cannot be used for any purpose other than those that have been approved. While developing an identification system of the magnitude of Aadhaar, security concerns relating to the data of 1.2 billion citizens ought to be addressed. These issues have not been dealt with by the Aadhaar Act. By failing to protect the constitutional rights of citizens.
From the verification log, it is possible to locate the places of transactions by an individual in the past five years. It is also possible through the Aadhaar database to track the current location of an individual, even without the verification log. The architecture of Aadhaar poses a risk of potential surveillance activities through the Aadhaar database. Any leakage in the verification log poses an additional risk of an individual’s biometric data being vulnerable to unauthorised exploitation by third parties.
The technology deployed in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number and infringes the right of an individual to identify herself/himself through a chosen means. Aadhaar is about identification and facilitates a proof of identity. It mustn’t be allowed to obliterate constitutional identity.
Creating strong privacy protection laws and instilling safeguards may address or at the very least assuage some of the concerns associated with the Aadhaar scheme which severely impairs informational self-determination, individual privacy, dignity and autonomy. In order to uphold the democratic values of the Constitution, the government needs to address the concerns highlighted in this judgment which would provide a strong foundation for digital initiatives, which are imminent in today’s digital age.
First Published: Sep 27, 2018 13:11 IST