Adhaar Verdict: Golden Mean & Uncertain Future

Lord Buddha taught us the Middle Path, neither this extreme nor the other, neither steeped in customs and rituals driven religiosity, nor steeped in crass materialism with an all-out negation of spiritualism.

The Supreme Court on Wednesday has taken the Middle Path or sought to put in a Golden Mean. It has retained the constitutional validity of Adhaar as an identity document and for certain government benefits and subsidies but taken away most of its teeth and private sector use and abuse possibilities.

In a historic judgment, the Supreme Court upheld the constitutional validity of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, and scheme by a 4:1 majority. The judgment was pronounced by a bench of Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan. Justice Chandrachud's views dissented from the majority.

What Adhaar can do: One Side of the Balance:

The verdict noted that the statutory authorities can mandate the linking of Adhaar number for availing its services, subsidies, etc. Also, the Supreme Court said that Aadhaar passed the three-fold test in 9 judge bench decision. It does not violate an individual's privacy. The SC noted that the Central government had given sufficient reasons to uphold Section 7 of Aadhaar Act, which deals with grant of subsidies and welfare benefits.

The majority view also held that a lot of people who will benefit due to inclusion cannot be denied due to exclusion of few; can’t throw the baby out with the bathwater. It is better to be unique than to be the best. The uniqueness of UID is the difference as claimed by Government of India and it empowers marginalised section of societies as it gives identity to such persons. Minimal demographic and biometric data of citizens are collected by the UIDAI for Aadhaar enrolment. Aadhaar number given to a person is unique and can’t go to any other person. Aadhaar identification is unparalleled hence, the SC held. Also, Aadhaar is mandatory to be linked with PAN card and for the filing of income tax returns.

What Adhaar cannot do: The Other Side of the Balance:

The verdict also notes that the private entities cannot anymore avail your Aadhaar data. The Supreme Court struck down Section 57 of the Aadhaar Act. It said that private companies (telecoms and banks included), and individuals cannot insist on Aadhaar data to provide consumer services. The Supreme Court seems to have struck down these provisions as they were not necessary and proportionate to the original purpose of Aadhaar (which as stated in the Aadhaar Act is the distribution of welfare subsidies). This means that digital wallets like Paytm or Amazon Pay Balance cannot demand Aadhaar data from customers in order to do a verification and allow them to continue using the services.
Aadhaar data can't be shared with security agencies - the SC read down Section 33 (2) which means that your Aadhaar data cannot be shared with security agencies in the name of upholding national security. Earlier, according to Section 47 of the Aadhaar Act, only the Government of India could complain about the theft of Aadhaar data. But the Supreme Court ruled that private individuals too can complain about it. Schools and colleges cannot seek child's Aadhaar details, on any occasion including their admission. It is not mandatory for CBSE, NEET, UGC, etc, in the educational life-cycle of a young Indian.

Challenges Ahead

The Supreme Court verdict, however, does not make it clear whether the companies which have accessed all the Aadhaar data till date, will now be required to delete this data. It is also not clear whether users can go to these companies and demand that they delete Aadhaar related data. In any case, the Court has said Adhaar authentication data can be stored for a maximum of six months, as noted in the verdict.

While Adhaar is not compulsory for bank accounts, but it is so for PAN cards, and PAN card linking is compulsory for bank accounts. Is there a dichotomy here? And how to sort this, there is no clarity just now.

Even in case of the need of Adhaar as identity by the state authorities, use of Aadhaar will be limited to only those purposes which are backed by a law. And so, if there is no law, Aadhaar cannot be made mandatory and if there is a law, it can be challenged as well. There is an apparent contradiction here and a possible source of unending litigation due to the grey areas.

Also, the SC has asked the Central government to introduce a robust data protection law as soon as possible, for which no guidelines are given, and neither any timeline. No comparative law globally has either been mentioned.

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 all but destroyed. There will be the need of re-enactment perhaps with subsidiary data protection laws alongside the Adhaar Act, going ahead.

The author is a media academic and columnist, currently the Dean of Media, Pearl Academy, Delhi and Mumbai.

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