SS SUPREME COURT VERDICT ON AADHAR

Aadhar Card and Right To Privacy – Can They Co-Exist?

-Aakash Raj Chauhan, RMLNLU Lucknow.

On Wednesday, September 26, 2018,A Constitution Bench of the Supreme

Court, led by CJI Deepak Misra upheld the validity of Aadhar as constitutional
but struck down Section 57 of the Aadhar act which allowed private entities to
seek Aadhar data for verification purposes but upheld the use of Aadhar for
government subsidies and scheme.
In addition to this Section 33(2) was also struck down by the Supreme Court
which allowed UIDAI to share data with specially authorised officers in the
interest of national security, was also struck down.
In the 4:1 majority judgment, Justice Chandrachud gave a dissenting opinion
and declared Aadhar as not valid.

Justice Chandrachud’s dissent incepts from the legislative process that started
the Aadhaar Act, 2016. While the majority opinion expressed through Justice
Sikri’s indicated that there was nothing wrong in pushing the Aadhaar Act
through Parliament as a money bill, Chandrachud has called it a “fraud on the
Constitution”, while adding that the decision made by the Lok Sabha speaker to
classify it as a money bill could be subject to judicial review.
He also held section 7 of the Act, as unconstitutional which makes Aadhaar
mandatory for state subsidies.

While Chandrachud held the purpose of the Aadhaar Act to be lawful, he

differentiated from the majority opinion in mentioning that there are not
enough robust safeguards as to “informed consent and individual rights such
as opt-out”.
SS SUPREME COURT VERDICT ON AADHAR

He also disagreed with the majority opinion on whether Aadhaar minimised

data collection and if it laid the ground for mass-profiling by noting that it
had the “potential for surveillance” and that its architecture “posed risk on
potential violation of leakage of database”.He also held that denial of social
welfare measures was violation of fundamental rights of citizens.
There is no institutional responsibility of the UIDAI to protect the data of
citizens, he said, adding that there was absence of a regulatory mechanism
to provide robust data protection.
However, he said it was now impossible to live in India without Aadhaar but
it was violative of Article 14. If Aadhaar is seeded with every database, then
there is chance of infringement of right to privacy, he said.
Justice Chandrachud said while parliament possesses the right to make a
law, the absence of protection lead to violation of various rights.

While the majority view by Chief Justice of India Dipak Misra and Justices A.K.
Sikri and A.M. Khanwilkar declared Aadhaar as a “document of
empowerment.” An “unparalleled” identity proof. A document that cannot be
duplicated unlike PAN, ration card, and passport.
“It is better to be unique than the best. The best makes you number one, but
unique makes you the only one,” Justice Sikri, who wrote the majority opinion,
wrote.

The majority opinion upheld the PAN-Aadhaar linkage, but declared linking
Aadhaar with bank accounts and mobile SIM cards not valid.
The court found both, Rule 9 of the Prevention of Money Laundering
(Maintenance of Records) Rules, 2005 and notifications issued under it, and
the Department of Telecommunications’ 23 March 2017 circular, mandating
SS SUPREME COURT VERDICT ON AADHAR

the linking of Aadhaar to an individual’s bank accounts and mobile numbers,

respectively, to be unconstitutional. Therefore, banks and telecom operators
can no longer insist that bank accounts and mobile numbers be linked with
Aadhaar. Similarly, they cannot deny services to individuals who refuse to
provide Aadhaar numbers. What happens to existing accounts and mobile
numbers linked with Aadhaar, is unclear.

The court encased children from the Aadhaar regime. It said that the card was
not mandatory for children aged between six and 14 under the Sarva Shiksha
Abhiyan as right to education was a fundamental right. Statutory bodies like
CBSE and UGC cannot ask students to provide their Aadhaar cards for
examinations like NEET and IIT-JEE. Permission of parents and guardians was a
must before enlisting children into Aadhaar, the Supreme Court declared.
Children once they attained the age of majority could opt out of Aadhaar, the
Supreme Court said.
Supreme court said, it was not trivialising the problem of exclusion faced by
the elderly, the very young, the disabled and several others during the
verification process.
Authentication was found to be only having a .232% failure, Justice Sikri
pointed out. It was accurate 99.76% times, Justice Sikri said.
He reasoned that dismantling the scheme would only disturb this 99.76%.
The Supreme Court, in its majority opinion, said the remedy was to plug the
loopholes rather than axe Aadhaar.
The court further ordered the government and the Unique Identification
Authority of India to make regulations so that rightful entitled people are not
denied the benefits.
SS SUPREME COURT VERDICT ON AADHAR

It also read down Section 33 (1), which allowed the disclosure of Aadhaar
information on the orders of a District Judge. This cannot be done now without
giving the person concerned an opportunity to be heard. The Supreme Court
struck down Section 33(2), which allowed the disclosure of Aadhaar
information for national security reasons on the orders of an officer not below
a Joint Secretary. It held that an officer above the Joint Secretary rank should
first consult with a judicial officer, a High Court judge, and the both should
decide whether information need to be disclosed.

The 4:1 judgment in favor of Aadhaar is a historic judgment. Now, the

“mandatory vs voluntary” debate is a thing of the past. Overall, the focus of
the decision is to retain Aadhaar, the mandatory requirement to avail benefits
of mid-day meal, to file IT-returns to curb tax evasion and black money and
other specific purposes. Aadhaar will continue to be mandatory and the State
has the power to make it compulsory for new purposes. Mandating Aadhaar
for various purposes and by people (both public and private) has come to an
end which is a big relief. The Act will empower the poor and marginalized
sections of the society as it will be used for subsidies and other government
schemes which will ensure that there is no leakage of government funds.