Supreme Court Upholds Constitutional Validity Of Aadhaar With Riders

Read the majority opinion by Justice AK Sikri, Justice AM Khanwilkar and Chief Justice Dipak Misra here.

Read Justice Ashok Bhushan’s judgment here.

Read Justice DY Chandrachud’s dissenting view here.

Justice Sikri in his majority judgment had held that allowing corporates to seek Aadhaar for authentication is unconstitutional. The apex court’s verdict will push up costs for the fintech industry, Rajiv Raj, the co-founder of credit-scoring platform CreditVidya told BloombergQuint.

Aadhaar will continue to be mandatory for the distribution of state-sponsored welfare schemes including direct benefit transfers and the public distribution system. Taxpayers will have to link their Permanent Account Numbers to the biometric database.

However, the unique 12-digit identification number will not be mandatory for opening bank accounts, mobile-phone connections or for admissions into educational institutions, Justice AK Sikri told the courtroom.

Aryama Sundaram, Senior Advocate

The Supreme Court's verdict today comes as a mixed bad for the government, he said.

"For one thing, it has succeeded in the constitutionality of the Act being passed as a money bill. Secondly it has succeeded so far in having the Act substantially upheld," he told BloombergQuiint. "On the other hand what would come at a blow to the government, is the part where bank accounts are not mandatory to be linked."

However, with Aadhaar still mandatory for welfare schemes, driving licences and PAN, the state will have data of a vast majority of the country, he added.

Prashant Bhushan, Senior Advocate

Bhushan welcomed the Supreme Court’s order, saying that it will provide relief to people who were being forced to part with their data for services provided by private players.

Alok Prasanna Kumar, Vidhi Centre For Legal Policy

Today's judgement will make both the sides unhappy, he said.

Sidharth Luthra, Senior Advocate

The court’s effort to balance the judgement between individual rights and the government's requirement to add to welfare programs makes it a landmark judgment, he said.

The fifth judge, Justice Ashok Bhushan, has also concurred with the Majority judgment in the Aadhaar verdict.

• Society is witnessing shift to a knowledge economy.
• Case is as much about rule of law as about institutional governance.
• Decision of Lok Sabha speaker certifying a bill as money bill can be judicially reviewed.
• Aadhaar Act cannot be regarded as money bill.
• Superseding the authority of Rajya Sabha constitutes as a fraud on the Constitution.
• Aadhaar Act is liable to be declared as unconstitutional.
• Regulations under Aadhaar Act do not provide robust mechanism for informed consent.
• There is no clarity on how an individual is supposed to update his biometric information in case of a mismatch.
• Aadhaar programme violates norms of informational privacy and data protection.
• Aadhaar project has failed to account for flaws which has led to exclusion of eligible beneficiaries.
• Respondents (Government, UIDAI) failed to satisfy test of necessity and proportionality.
• UIDAI does not face any institutional accountability or responsibility to ensure whether data entered in CIDR is authentic.
• Aadhaar Act is also silent on their liability.

Chief Justice of India Dipak Misra and Justices Justices AK Sikri, AM Khanwilkar earlier upheld the Aadhaar Act as constitutional, in their judgment.

Justice Chandrachud On Section 57 And Section 7:

• Section 57 violates Articles 14 and 21 of Constitution.
• Section 7 enables the government to regulate its every interaction with the citizens. It suffers from “overbearing” nature.
• Section 7 is arbitrary and violative of Articles 14 and 21.

Data collected by telecom companies through Aadhaar linkage should be deleted, says Justice Chandrachud in his dissenting judgment.

The mandatory linking of bank accounts with Aadhaar has also been quashed, Justice Sikri said in his order.

The DoT notification of linking SIM cards with Aadhaar has been held unconstitutional, Justice Sikri said as a part of the majority judgment.

The apex court has held that the Aadhaar Act could be passed as a money bill.

Petitioners had argued that provisions of the Aadhaar Act which do not fulfill the criteria of a money bill cannot be removed once the bill has been passed. Hence, the entire law needs to be struck down.

Educational boards such as CBSE and UGC who have made the need for Aadhaar mandatory, cannot do so, Justice Sikri said.

• For enrollment of children in Aadhaar it would be essential to have consent of parents. While attaining age of 18, they will be given of choice to exit.
• As far as admission into school is concerned, requirement of Aadhaar is not mandatory.

The portion of Section 57 that enables corporates to seek Aadhaar for authentication is held to be unconstitutional, Justice Sikri said in his majority judgment.

• Authentication records are not to be kept beyond period of six months.
• Meta data relating to transactions is held to be impermissible.There cannot be any kind of meta data.
• Section 33(2) struck down.
• Section 33(1) also read down.

Justice Sikri read out the majority judgment today, in favour of the Aadhaar programme. Chief Justice Misra and Justice Khanwilkar concurred with his view. Aadhaar will empower the marginalised sections of the society, giving them an identity, he said.

Here are the key highlights.

• It is better to be unique than the best because being the best makes you number one but being unique makes you one. Uniqueness is the feature of Aadhaar.
• Architecture of Aadhaar reveals that UIDAI is a statutory body.
• Aadhaar number given to a particular person is unique and cannot be given to anyone else.
• Attack of petitioners is founded on the argument that it (Aadhaar) is a grave risk to the rights of the citizens of the country. They contend it makes the state capable of becoming a surveillance state.
• The respondents argue that minimal biometric information is obtained.
• Respondents argue that no data is collected on basis of caste, creed, religion, medical history etc.
• Aadhaar to empower marginalised sections of society. It gives them an identity.
• Aadhaar prevents duplication of data and the enrollment is foolproof.
• Court has adopted a just, fair and reasonable standard to test Aadhaar on principle of Fundamental Right of privacy.
• Respondents rightly pointed out there are sufficient safeguards in authentication process.

A constitution bench of the Supreme Court will on Sept. 26 rule on the validity of the Aadhaar, the world’s largest biometric identification database, and if the government can make the 12-digit unique ID compulsory for citizens to avail everything from phone connections to welfare benefits.

Petitioners have, among others, challenged three key aspects: collection of biometric data of citizens prior to 2016 without any statutory backing, mandatory use of Aadhaar as an identity proof to avail public services and passage of the Aadhaar Act in 2016 as a money bill that doesn’t require the assent of Rajya Sabha.

The apex court bench, headed by Chief Justice of India Dipak Misra and comprising Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, had reserved its judgment on May 10 after a hearing that lasted 38 days with India’s top lawyers arguing for the petitioners. Kapil Sibal, P Chidambaram, Rakesh Dwivedi, Shyam Divan and Arvind Datar highlighted concerns about everything from possible citizen profiling and state control to denial of public services and hasty passage of the law.

Multiple reports of unauthorised people having access to Aadhaar data had triggered privacy concerns. Moreover, the petitioners also highlighted that how the top court had ruled privacy to be a fundamental right.

The government and the Aadhaar-issuing body UIDAI argued that unique ID helped in preventing subsidy leakages. They also countered the reports of Aadhaar data leakages, saying that there has not been a single data breach from the Aadhaar database.

Here are the key arguments made by the government and petitioners:

Government

• The right to privacy is not absolute. There can be instances when this right can be curtailed and the Aadhaar programme is one such instance.
• The Aadhaar programme satisfies the three conditions when right to privacy can be curtailed as laid down by the nine-judge bench. These include existence of a law, compelling state interest/larger public interest and test of proportionality.
• There must be a balance between protecting right to privacy and ensuring right to a dignified life for all the citizens.
• The Aadhaar programme ensures the right to dignified life for citizens by plugging leakages in distribution of subsidies.
• Each of the subsidies provided under the Aadhaar Act is traceable to Article 21, ensuring a right to a dignified life and therefore it is a constitutionally valid scheme.
• Aadhaar does not violate the fundamental right to privacy, the Attorney General of India argued.
• Data collected as part of the scheme is minimum.
• If the top court feels any data should not have been taken, the government will delete that data and stop using it in the Aadhaar programme.

Petitioners

• The state is constitutionally bound to provide subsidies, benefits and services to its citizens.
• Aadhaar makes the delivery of these conditional on citizens parting with their biometric and demographic information. The petitioners challenged Section 7 of the Aadhaar Act on this ground which empowers the government to seek Aadhaar as a means of identity for delivery of subsidies.
• The UIDAI has the power to cancel the Aadhaar number anytime with the citizen having almost no redressal mechanism. That deprives him of services for which he or she would need an Aadhaar number.
• Section 57 of the Aadhaar Act gives the government and private companies the authority to seek Aadhaar for “establishing the identity of an individual for any purpose”. That makes it capable of turning into a tool for a surveillance state.
• There is no concept of consent in the Aadhaar Act and it is only “illusory” as without Aadhaar authentication a person will be denied benefits, services and subsidies.
• Aadhaar fundamentally violates the balance between the citizen and the state.
• The Supreme Court judgment in Section 139AA of Income Tax Act, which mandates linking of Aadhaar to the Permanent Account Number, needs to be re-looked after the Right to Privacy verdict.
• There are strict criteria of what will qualify as a money bill, which bypasses the scrutiny of the Rajya Sabha as well as takes away the power of the President to send the bill back to Parliament for reconsideration.
• Provisions of the Aadhaar Act which do not fulfil the criteria of a money bill cannot be removed once the bill has been passed. Hence, the entire law needs to be struck down.

Advocate Apar Gupta, who has worked with the team that has challenged Aadhaar on several grounds, has shared a timeline of developments around the biometric identification system.

How It Began

Voices Raised

The Wait

The Breakthrough

The Finale