Richa Chhabra
The article focuses on key features of verdict of Aadhaar Act. It starts with slight hint of purpose of rolling out the Aadhaar scheme, the need for structure through which it can be duly exercised and its implications. It further chalks out the legal issues surrounding the Aadhaar. Following which, the text explores what has been held in the Supreme Court judgement –the majority and the minority view, reasons so given therewith and the provisions that have been read down and related issues, each enabling drawing out the scope and ambit of the law enacted and the objective envisioned. .
The Aadhaar scheme was initiated in 2009 in order to cater to the requirement of reliable identity proofs for access to welfare schemes and services rendering such benefits to general public given by the Central or State Government for which expenditure was drawn from the Consolidated Fund of India.
The identity proofs like ration card or driving license, which were used earlier for receipt of a subsidy, benefit or service, could easily be duplicated or forged and thus, disenabling the plan to help the eligible individuals to access the government schemes and benefits.
With a sole aim to address the problem mentioned above, the biometric-scheme was sought to identify and helpthe right candidates under the benefits schemes of centre and state.
In 2016, the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 was enacted, aiming to provide to the scheme “to identity the eligible person”-a legislative and structured backing. It was thought to be a fool proof plan.
Though, while realizing the scheme, major consequential gapslike issue of protection of data, the manner in which the Act was passed, in what areas the linkage is necessary, if the provisions of the Aadhar Act were contrary to the right to privacy which has been established as a fundamental right by the Supreme Court in Justice K.S.Puttaswamy (Retd.) and Anr. Versus Union of India and Ors. [1] surfaced, strictly demanding the Judiciary to step in and decide the legal stand over them.
In September2018, The Constitution Bench of the Supreme Court, led by Chief Justice of India Dipak Mishra upheld the validity of Aadhaar scheme and the Actsubject to certain limitations. There were a number of pleas before the Court on which the Aadhaar verdict was propounded after being heard for a period of four and half months.
The decision, however, was passed with a 4:1 majority with Justice D Y Chanadrachud’s having a dissenting view about the constitutionality and other dimensions of the Act.
In sharp contrast to the majority verdict by the bench, he clearly pointed out it as “subterfuge and a fraud on the constitution” and that Aadhaar law cannot be passed as Money Bill simply because it does not qualify under Article 110 of the Constitution.
The law was passed bypassing the Rajya Sabha thus challenging the very law-making procedure and putting across a question mark on the latent intent behind the move. In the concerned matter, Rajya Sabha had some recommendations for the bill which was rejected by Lok Sabha. The legality of this issue was argued before the court.
Justice Chandrachud also stated that the Act stands in contrast with the idea of protection of fundamental right; by violating the right to privacy. He said “this data was vulnerable to be misused by third party and private vendors, and that too, without the consent of an individual.”
On other hand,Justice A.K. Sikri, from the majority bench, said that Aadhaar eliminates the possibility of duplication and empowers the marginalised.It is “unique in an unparalleled way,” he added.
In the judgement, the Supreme Court listed out the services which do not require Aadhar verification following the verdict. The bench mandated that Aadhar would remain compulsory for filing of Income Tax Returns under section 139AA of the Income Tax Act and allotment of Permanent Account Number (PAN)which was held as based on law and serving the legitimate interest whereas not necessary for students seeking school admissions or appearing in UGC, NEET and CBSE examinations.
Telecom service provider also cannot seek Aadhaar details from the customer who buys new SIM Card or fetches any related service. Other KYC documents like Voter ID, driving licences, etc. would be sufficient. This particular piece was also favoured by dissenting Judge.
Section 7 of the Aadhaar Act, makes Aadhar number must for availing facilities of welfare scheme and subsidies helping the poor and marginalised. However, the top court exempted children saying that no child can be denied benefits of any scheme if they do not possess the Aadhar card. Thus sorting out the confusion amongst the public whether for any particular service, linkage of Aadhaar is mandatory or not.
It was held that it does not account for violation of privacy asminimal biometric data is collected, crippling the invasion in an individual’s personal domain and hence serving in the larger public good.
The provisions that have been struck down: The Section 57 of the Aadhaar Act has been struck down, thus now disallowing private entities to use Aadhaar for verification purposes making it clear that Aadhaar now is no longer a proof of identity. The phrase “any purpose” used in this provision was held to be too wide and disproportionate.
An Aadhaar holder cannot be persuaded into putting such information out as provided under section 33(2). Puttingoff Section 33(2) would mean disclosure of identity information and Aadhar data cannot be asked to be done in the interest of national security thereby ensuring a far better privacy of individual’s Aadhaar data.
Even after maintaining the law,if there isa case of breach of security, the provision of filing a complaint finds its place in the Act under section 47.
Section 2(d) has also been rendered unenforceable by the aforementioned judgement which provided for storage of metadata of individuals generated at the instance of any transaction made.
Bottom-line: It has been a step ahead in direction of recognizing the need for progressive data protection principles with repercussions, of course. Since it is just the beginning there is lot and far better to come and be complied with.
[1]WRIT PETITION (CIVIL) NO 494OF 2012
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