26, Sep 2018 | Deborah Grey

The Supreme Court has upheld the constitutional validity of Aadhaar, however in a partial victory for privacy activists, controversial sections such as those dealing with the national security exception and private players demanding Aadhaar data, have been struck down. Now, one will not be required to link Aadhaar to either one’s bank account or mobile phone number.

The Aadhaar case that was heard for a record 38 days by a bench comprising Chief Justice Dipak Misra, Justice DY Chandrachud, Justice AK Sikri, Justice AM Khanwikar and Justice A Bhushan delivered the verdict months after reserving judgment in May. There were three separate judgments from Justice Sikri, Justice Bhushan and Justice Chandrachud. CJI and Justice Khanwilkar did not pronounce a separate judgment but concurred with Justice Sikri. Justice Bhushan’s judgment was also in line with that of Justice Sikri. But Justice Chandrachud wrote a dissenting judgment.

Delivering his judgment Justice Sikri said that Aadhar “empowers marginalised section of societies as it gives identity to such persons.” Aadhaar will remain mandatory for filing tax returns and one would be required to link Aadhaar to PAN. It would also be required to obtain benefits under government schemes.

However, in a win for privacy activists, Section 33(2) of the Aadhaar Act that dealt with the National Security exception has been struck down. This section permitted disclosure of information, including identity and authentication information, made in the interest of national security. Justice Sikri has also read down Section 33 (1) that enables disclosure of Aadhaar information on order of a District Judge. Now the owner of the information should be given opportunity f hearing before issuing such orders.

Additionally Section 57 of the Aadhaar Act, that permitted private entities to use Aadhaar information to authenticate the identity of a person, has also been held unconstitutional. Therefore no private company can either demand Aadhaar information or make it mandatory for providing services. Aadhaar will not be required for opening a bank account or for getting a mobile phone connection.

Section 47 that allowed only the UIDAI to file criminal complaints in case of data breach has also been struck down. It has been held that exclusion of individuals from filing complaints was arbitrary. The SC also ruled that authentication records cannot be retained beyond 6 months, therefore the provision of retention of date for 5 years was held illegal. It was also held that profiling using Aadhaar was not possible due to inbuilt safeguards.

School admissions would also not require Aadhaar. The court said, “School admission does not qualify as a subsidy, benefit or service for the purpose of section 7 and hence, Aadhaar may not be mandatory for the same; bodies like CBSE, NEET also may not require Aadhaar.”

Justice Chandrachud wrote the lone dissenting judgment saying Aadhaar is liable to be declared as unconstitutional. “Violation of fundamental rights under the Aadhaar scheme fails on the touchstone of tests of proportionality,” he said.  “Constitutional guarantees cannot be compromised by vicissitudes of technology,” he noted in a strongly wordeddissenting judgment.

Highlighting the clandestine manner in which Aadhaar Act was practically sprung upon Indians, Justice Chandrachud said, “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.” He added,

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. Passing of a Bill as a Money Bill, when it does not qualify for it, damages the delicate balance of bicameralism which is a part of the basic structure of the Constitution. The ruling party in power may not command a majority in the Rajya Sabha. But the legislative role of that legislative body cannot be obviated by legislating a Bill which is not a Money Bill as a Money Bill. That would constitute a subterfuge, something which a constitutional court cannot countenance.”

Justice Chandrachud has also told telecom companies to delete all Aadhaar data received from customers. Justice Chandrachud also expressed his apprehensions about the misuse of data for profiling saying,

Biometrically enhanced identity information, combined with demographic data such as address, age and gender, among other data, when used in increasingly large, automated systems creates profound changes in societies, particularly in regard to data protection, privacy, and security. Biometrics are at the very heart of identification systems. There are numerous instances in history where the persecution of groups of civilians on the basis of race, ethnicity and religion was facilitated through the use of identification systems. There is hence an alarming need to ensure that the on-going development of identification systems be carefully monitored, while taking into
account lessons learnt from history.”

On the controversial Section 7 of the Aadhar Act, he said, “Mandating Aadhaar for benefits and services under Section 7 would lead to a situation in which citizens will not be able to live without Aadhaar.” Speaking about the discretionary powers given to UIDAI, he said, “Dignity of rights and individuals can’t be based on algorithm, rights of the 2 billion people cannot be tested as mere contract.”

Former Attorney General Soli Sorabhji appeared cautiously optimistic about the judgment. He said, “I think on the whole it is a good judgement. Though personally, I am happy with Justice Chandrachud’s judgement striking it down on the ground that it bothers right to privacy.”

The entire judgment may be read here:

Related:

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Understanding the Aadhaar Case

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