Aadhaar valid, but restricted, and still a problem

Last Updated 16 December 2018, 18:50 IST

Six years after the first writ petition challenging the constitutional validity of the UID Scheme was filed, the Supreme Court finally gave its judgment. In a 4-1 split, the majority opinion authored by Justice Sikri, (along with a separate concurrence written by Justice Bhushan) upheld the validity of the Aadhaar Project, the Aadhaar Act, and the Regulations. Justice Chandrachud wrote a strongly worded dissent, holding the Act and the Regulations to be unconstitutional, and going to the extent of directing that all Aadhaar related data was to be destroyed in a year if no fresh law was enacted by the government in conformity with the principles enunciated in his judgment.

The majority upheld the Aadhaar Act and Regulations on the following grounds: first, only minimal biometric information is collected by the State during enrolment, and this information remains in discrete silos. Second, the architecture of the Aadhaar Act does not tend to create a surveillance State. Third, it is very difficult to create a profile of a person simply on the basis of biometric and demographic information; and fourth, there are sufficient safeguards in the Act and the Regulations to protect the privacy of the Aadhaar number holders.

Most notably, the majority upheld section 7 of the Act, which makes the receipt of benefits, subsidies, and services contingent on the production and authentication of Aadhaar, although it ruled that section 7 cannot cover UGC, NEET, CBSE, school admissions etc. The Petitioners had placed various affidavits, reports, and data before the Court highlighting the exclusion and hardship faced by the most marginalised sections of society in accessing benefits linked to Aadhaar authentication and the disproportionate impact it had on their lives. However, the majority simply sidestepped this issue by observing, “The entire aim of launching this programme is the ‘inclusion’ of the deserving persons who need to get such benefits. When it is serving a much larger purpose by reaching hundreds of millions of deserving persons, it cannot be crucified on the unproven plea of exclusion of some.” It is ironical that despite the documented exclusion that has occurred for the poor, disabled, manual labourers, due to authentication failures, the Court still termed the Aadhaar Card a "document of empowerment"."

At the same time, the Court struck down section 57 of the Act, to the extent it enabled private entities and individuals to seek Aadhaar authentication. This will curb the unrestricted extension of the Aadhaar platform that we have witnessed over the last two years, whether through IndiaStack (which is a set of Aadhaar specific application programming interfaces), OnGrid (which provided background checks using Aadhaar) or PayTM. Along with this, the Court has also struck down the requirement of bank linking and mobile linking. This is significant since Aadhaar-creep was primarily caused by the financial investment of private companies with the Aadhaar database, and the striking down of section 57 will mean a shrunken Aadhaar project. In fact, reports have already started coming that the government may think of a new law to get over this part of the judgment.

Finally, the majority upheld section 139AA of the Income Tax Act that requires PAN linking, relying in part, on its previous judgment in Binoy Vishwam.

Apart from this, one of the major grounds of disagreement between the majority and Justice Chandrachud was on whether the Aadhaar Bill could be classified as a money Bill. Strongly criticising the Government for passing a Bill as a Money Bill, when it clearly did not qualify as such, Justice Chandrachud called it a “fraud on the Constitution” and a “subterfuge”.

It is perhaps apt to end with a quote from Justice Chandrachud’s dissent, “Constitutional guarantees cannot be subject to the vicissitudes of technology. Denial of benefits arising out of any social security scheme, which promotes socio-economic rights of citizens, is violative of human dignity and impermissible under our constitutional scheme.”

(Vrinda Bhandari is an Advocate. She appeared for one of the Petitioners in the Aadhaar case).

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(Published 26 September 2018, 16:09 IST)

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