'SC verdict curtails mindless expansion of Aadhaar, underscores need for better scrutiny while drafting laws'

In a landmark judgement, the Supreme Court on Wednesday by a 4:1 majority judgment upheld the legality of Aadhaar for use only in government-funded social benefit schemes and PAN and Income Tax Return (ITR) while junking its requirement for mobile phone connections, bank accounts, school admissions and competitive examinations.

A five-judge bench headed by Chief Justice Dipak Misra held that Aadhaar would be voluntary and not mandatory.

The majority judgment, which struck and read down or clarified various provisions of the Aadhaar Act, was read out by Justice AK Sikri speaking for Chief Justice Misra and Justice AM Khanwilkar and himself. Justice Ashok Bhushan delivered a separate but concurring judgment. Justice Chandrachud's was the lone dissenting voice, who held that passing the Aadhaar law as money bill was unconstitutional and a "fraud on the Constitution" because it was not a money bill. Firstpost spoke to Shankkar Aiyar, a political economy analyst, who authored a book Aadhaar: A Biometric History of India's 12 Digit Revolution on India's ambitious scheme to provide unique identification numbers to citizens.

What is your overall view of the judgement of Supreme Court?

The judgement is an eloquent exercise of judicial review where the interest of the individual has been balanced with public interest.

What has changed with the Aadhaar judgment?

The judgment restores the original conceptualisation of the idea of Aadhaar - an instrument to establish identity to ensure delivery of public goods, services and entitlements. The judgment has righted many wrongs in the law, in regulation, and in the approach to its expansion.

How do you see the striking down and reading down of several sections - 7, 33-1 33-2, 47, 57 by the bench?

The judgement has curtailed the use of the omnibus preamble of the Act and aligned the law to the basic template of need for instruments and right to privacy. The issues affecting individual rights and the blind use of the omnibus nature of the preamble of Aadhaar Act 2016, the lack of scrutiny, the denial of the right to redressal through Section 47, the open ended nature of leeway to the state, the use of Aadhaar as a potion to cure every ailment of governance were all flagged in the epilogue of my book, Aadhaar- A Biometric History of India's 12 Digit Revolution.

What is your view on the upholding of the passage of the law as Money Bill?

The majority judgment has upheld the right of the legislature to define what is a Money Bill. At the same time Justice Chandrachud has raised questions that merit attention — for instance should the decision on what constitutes a Money Bill rest on one individual. It provokes thought on the need for a re-think. There is a need for political parties to think this through as the use of money bill route, when used as a tactic to overcome political blocks, leaves the legislation vulnerable to poor drafting. Oversight and debate is critical for legislation to deliver intended purpose. The fact that so many sections of the Aadhaar Act have been read down or struck down is a testimony of the need for better scrutiny of legislation.

How does the judgment impact the average Joe?

The judgment weighs in favour of the citizen. It precludes the possibility of data collection, use, abuse, exploitation and monetisation by private enterprises. It ring-fences the extent of state power in collection and use of data. It also establishes the need for better regulation, legislation and process in the collection and use of data by the government. The judgment has curtailed the mindless expansion of Aadhaar.

There are still questions about how data protection and privacy will be ensured?

Yes, there are issues that need clarity — the issue of what happens to data collected by private companies is one. Implicit in the judgment is the need to erase/delete all individual data in the servers of the companies. How this will be ensured needs elaboration. On the other hand the judgment has struck down the linkage of bank accounts with Aadhaar. So how does the DBT of subsidies like that for LPG users work?

What about the law for data protection?

The judgment explicitly asks the government to legislate a data protection and ensure privacy of personal information and privacy. The judgment has set the bar on future legislation in the domain of individual rights and privacy.


Updated Date: Sep 27, 2018 10:48 AM

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