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SC finds Aadhaar constitutional in 4-1 ruling; dissenting judge says passing law as money bill akin to fraud

The Supreme Court on Wednesday upheld the constitutional validity of the Aadhaar scheme and the Act but with conditions. However, the dissenting view of Justice DY Chandrachud stole the show with his emphatic view in which said that Aadhaar is unconstitutional. "Constitutional guarantees cannot be compromised by vicissitudes of technology," he said. However, four of five judges on the constitutional bench concurred that Aadhar "serves a bigger public interest".

Justice AK Sikri, who pronounced the judgment on behalf of Chief Justice of India Dipak Misra and Justice AM Khanwilkar, asserted that there was no possibility of obtaining a duplicate Aadhaar card. He said, "Unique identification proof empowers and gives identity to marginalised sections of society." He added that Aadhar takes into account the dignity of people not only from personal but also from the point of view of a community. Addressing worries of exclusion, Justice Sikri said, "Lot of people who will benefit due to inclusion cannot be denied due to exclusion of few; can't throw baby out with bathwater."

The bench also said that there is nothing in the Aadhaar Act that violates right to privacy of an individual. "The concept of human dignity has been enlarged in the judgment," Justice Sikri said. He added, "Human dignity is based on socio-economic rights. In the present case, we've enlarged the scope of human dignity. We've applied the principle of compelling state interest."

Representational image. Reuters

Representational image. Reuters

Lawyers' reactions to the verdict

Lawyers who have been tracking the case for a while said that the verdict of the Supreme Court undermines the legitimacy of the Aadhaar Act. "This project has little or no legitimacy left. Massive legislative and structural changes will be required...," lawyer Apar Gupta tweeted. He further added, "Today's judgment, as read out in court, signals massive changes in the Aadhaar project and the Act. The legitimacy of its stated purposes is destroyed. Even the majority signals significant concern by reading down portions."

Gupta also tweeted that all three judgments acknowledged the legitimacy of the grievances of the petitioners. He said, "They were repeatedly called proxies for corruption, 'vested interests', busybodies and alarmists. Please remember the Indian Supreme Court is not a radical institution."

Questioning the government, Gupta said the "toxic biometric dump" is not a treasure, but a "hazard". He said, "Time to remove the 13 foot walls and destroy the Aadhaar. Preferably by incineration."

However, speaking to Firstpost, technology lawyer and civil liberties activist Mishi Choudhary said, "The Supreme Court has put a stop to the onward march of the ubiquity of Aadhaar by curtailing its scope and limiting it to welfare schemes and filing of Income Taxes. Striking down of Section 57 that gave access to private companies puts a stop to this mission creep of Aadhaar." She added that the judgment was a much-needed relief to the common public, and said that "limitations of storage, on metadata analysis and state intereference" are important developments for privacy.

Choudhary also lauded Justice Chandrachud's dissenting judgment and said it would "help keep the court and country honest". She said, "The judgments underscore the need for a robust privacy framework for the largest democracy where the Data Protection Act forms one aspect as we work on other pillars of the framework to protect citizen's rights. What happens in India resonates around the world and the courage of the dissent is the music that we hear in other parts."

Former Attorney General of India, Soli Sorabjee said, "I think on the whole it is a good judgement. Though personally, I am happy with Justice Chandrachud's judgment striking it down on the ground that it bothers right to privacy."

Senior lawyer Prashant Bhushan said the Aadhaar verdict is a major relief since it is no longer mandatory to have the unique ID linked to all services. He noted that there was a difference in opinion over the legislation being passed as a Money Bill.

List of services for which Aadhaar will not be mandatory

In a 1400-page judgment, the Supreme Court also listed out services for which Aadhaar verification or linkage will not be mandatory anymore: Telecom service providers cannot ask to link mobile numbers with Aadhaar; educational platforms like CBSE, NEET, UGC cannot make Aadhaar mandatory; Aadhaar is not compulsory for school admissions; no child can be denied benefits of any schemes on not being able to bring Aadhaar. The Supreme Court also directed that Aadhaar authentication data cannot be stored for more than six months.

Sections of the Act that have been struck down

Section 57: The Supreme Court read down Section 57 of the Aadhaar Act, calling it "unconstitutional". This decision means that an Aadhaar card is no long longer a proof of identity and cannot be demanded for that purpose. The court specified that private companies can no longer mandatorily seek a person’s Aadhaar details for authentication. It has been read down to the extent that "any purpose" should mean a purpose backed by law as far as State authorities are concerned.

Section 33(1): The Supreme Court has read down Section 33(1) to afford an individual an opportunity to be heard if his or her data has been sought from the UIDAI. An Aadhaar-holder can now make his or her case to not have their data disclosed and not be forced into it.

Section 33(2): This allowed the UIDAI to disclose information under the Aadhaar Act, including identity and authentication data, in the interest of national security on an order to the Centre from an officer not below the rank of a joint secretary. For example: The police could seek a first-time offender’s Aadhaar details to verify his identity. The bench struck down this section.

Section 47: The Supreme Court has held that excluding individuals from filing complaints was arbitrary and struck down this section of the Aadhaar Act. It said that even individuals must be entitled to file complaints.

Section 2(d): The Supreme Court has struck down this provision in its entirety. Under this provision, the Aadhaar database could store metadata of individuals generated at the time of authentication or carrying out transactions. A person’s IP address, for example.

List of services for which Aadhaar is mandatory

PAN card: The bench mandated an Aadhaar card continues to be mandatory for PAN card linking.

Income Tax returns: Justice Sikri also pronounced that the Aadhaar card was mandatory for income tax returns under Section 139AA of the Income Tax Act.

Justice DY Chandrachud's dissenting judgment

Justice Chandrachud wrote a separate judgment on the validity of Aadhaar saying that he had expressed some views different from that of the verdict pronounced by Justice Sikri. He said that the Aadhaar Act could not have been passed as Money Bill as it amounts to a fraud on the Constitution and is liable to be struck down.

In sharp contrast to the majority verdict by the bench, Justice Chandrachud emphasised on the faults of the scheme. About the Aadhaar Act being passed as a Money Bill, he said, "Bypassing the Rajya Sabha to pass the Aadhaar Act amounted to subterfuge and the law was liable to be struck down as being violative of Article 110 of the Constitution." Article 110 has specific grounds for Money Bill and the Aadhaar law went beyond this, Justice Chandrachud said, adding that in the current form, the Act cannot be held to be constitutional.

Maintaining that the Prevention of Money Laundering Act Rules proceeded on the assumption that every bank account holder is a money launderer, he said the assumption that every individual who opens a bank account is a potential terrorist or a  launderer is "draconian". He also noted that the collection of data may lead to individual profiling of citizens.

Asserting that the Aadhaar programme violated informational privacy, self-determination and data protection, Justice Chandrachud said that the UIDAI, which is the foremost authority of the project, had admitted that it stores vital data which is violative of right to privacy. He stated that the Aadhaar project has failed to remedy the flaws in its design which lead to exclusion.

Justice Chandrachud said, "This data was vulnerable to be misused by third party and private vendors, and that too, without the consent of an individual." Allowing private players to use Aadhaar will lead to profiling, which could be used to ascertain the political views of citizens, he said. He also held that denial of social welfare measures was violation of fundamental rights of citizens

The verdict was pronounced on a batch of pleas challenging the constitutional validity of Aadhaar scheme and its enabling 2016 law. The bench had on May 10 reserved the verdict on the matter after a marathon hearing that went on for 38 days, spanning four and a half months.

With inputs from PTI


Updated Date: Sep 26, 2018 16:54 PM

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