SC upholds Aadhaar, strikes down some provisions – Top details to know

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New Delhi | September 27, 2018 6:02 AM

Rules Aadhaar Act doesn’t violate right to privacy; mandatory linking with bank accounts, mobile phones and school admissions struck down.

aadhar, aadhar cardThe government was directed not to give Aadhaar IDs to illegal immigrants.

Upholding the constitutional validity of the BJP government’s flagship Aadhaar scheme, the Supreme Court on Wednesday ruled that the Aadhaar Act doesn’t violate the right to privacy, but struck down some of its provisions including mandatory linking with bank accounts, mobile phones and school admissions.

A five-judge Constitution bench led by Chief Justice Dipak Misra, in a 4:1 judgment, held that Aadhaar would remain mandatory for filing of income tax returns and allotment of Permanent Account Number (PAN).

Holding that the use of Aadhaar is a must for welfare schemes, the apex court said that the unique ID was meant to help the benefits reach the marginalised sections of society and the scheme has a sufficient defence mechanism to check the possibility of any duplicacy.

For the exclusion of a “minimal” 3% population, 97% cannot be denied the benefits of Aadhaar and the scheme served the much bigger public interest, the top court said, adding that “one can’t throw the baby out with the bathwater”.

“Aadhaar means unique and it is better to be unique than being best… Aadhaar gives dignity to the marginalised. Dignity to the marginalised outweighs privacy,” it said in its 1,448-page judgement. However, the Supreme Court made exception for children saying that no child can be denied the benefits of any scheme if he or she doesn’t have an Aadhaar card.

Observing there was nothing in the Aadhaar Act that violates right to privacy of an individual, it said that there has been minimal demographic and biometric data collected by the Unique Identification Authority of India (UIDAI) for Aadhaar enrolment.

Aadhaar would not lead to a surveillance state because the data was kept in silos, it said, adding that it is difficult to profile a person on the basis of minimal biometric information collected.

However, a robust data protection regime has to be brought in place as early as possible, the apex court said, adding that the attack on the Aadhaar Act was based on violation of rights under the Constitution, which the petitioners felt led to a surveillance state.

Justice Sikri, writing a majority judgment for the bench, struck down Section 57 of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 that permitted private entities like telecom companies, payments banks and e-wallet companies like Paytm to force their customers on get their KYC done using Aadhaar card to avail their services.

The majority verdict by the Chief Justice and Justices AK Sikri, Ashok Bhushan and AM Khanwilkar also said that it would not be mandatory for school admissions, as also for the examinations conducted by the Central Board of Secondary Examination, National Eligibility cum Entrance Test (NEET) for medical entrance and the University Grants Commission, the court said.

The bench also struck down the national security exception under the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016. It quashed Section 33(2) in the present form that allowed collection of data of an individual under the scheme on grounds of national security, saying an officer higher than the rank of joint secretary should be given such a power.

It also upheld the passage of the Aadhaar Bill as a Money Bill by the Lok Sabha, thus giving a green signal for the government’s ambitious project —the world’s largest biometric ID database. The top court further made retention of data beyond six months impermissible. Regulation 27 provided archiving data for five years.

The government was directed not to give Aadhaar IDs to illegal immigrants.

Justice Bhushan agreed with the majority view in his separate judgment that there was no need to link Aadhaar with mobile numbers and rejected the argument that revealing demographic information for Aadhaar amounted to a violation of the right to privacy, saying an individual revealed such data for other ID proofs.

The verdict was pronounced on a bunch of 31 petitions, including one by former Karnataka High Court judge KS Puttaswamy. The marathon hearing that concluded on May 10 went on for 38 days, spanning four-and-half months.

The Aadhaar case was the “second longest” one in terms of days of hearing after the historic Kesavananda Bharati case of 1973.

Justice DY Chandrachud in his dissenting judgement held that the Aadhaar Act could not have been passed as a Money Bill as it amounts to a fraud on the Constitution. He said that bypassing the Rajya Sabha to pass the Aadhaar Act amounted to subterfuge and is liable to be struck down as 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.

He further stated that it was now impossible to live in India without Aadhaar and it was violative of Article 14 and if it got seeded with every database, there was a chance of infringement of right to privacy.

Noting that the mobile has become an important feature of life and its seeding with Aadhaar posed a grave threat to privacy, liberty, autonomy, he favoured deletion of consumers’ Aadhaar data by the mobile service providers. 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 was “draconian”.

Justice Chandrachud said the collection of data could lead to individual profiling of citizens and the Aadhaar scheme violated informational privacy, self-determination and data protection which has been admitted by UIDAI.

He said the data was vulnerable to be misused by third parties and private vendors, and that too without the consent of an individual.

He said the Aadhaar project has failed to remedy the flaws in its design, leading to exclusion.

Allowing private players to use Aadhaar will lead to profiling which could be used to ascertain the political views of citizens, he said, adding that the denial of social welfare measures was violation of fundamental rights.

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, according to the judge.

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