Lord Buddha taught us the Middle Path, neither this extreme nor the other, neither steeped in customs and rituals drove religiosity, nor steeped in crass materialism with an all-out negation of spiritualism.
The Supreme Court on Wednesday has taken the Middle Path in Aadhaar verdict. It has retained the constitutional validity of Aadhaar as an identity document for certain government benefits and subsidies but taken away most of its teeth and private sector use and abuse possibilities.
In a historic judgment Wednesday, the Supreme Court upheld the constitutional validity of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, by a 4:1 majority. The judgment was pronounced by a bench of Chief Justice Dipak Misra, Justices AK Sikri, AM Khanwilkar, DY Chandrachud, and Ashok Bhushan. Justice Chandrachud’s views dissented from the majority.
Aadhaar no more invasive
So, 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 verification and allow them to continue using the services.
Aadhaar data can’t be shared with security agencies. Supreme Court struck 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 during their admission. It is not mandatory for CBSE, NEET, UGC, etc, in the educational life-cycle of a young Indian.
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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.
What Aadhaar can do
However, statutory authorities can mandate the linking of Aadhaar 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. One of the judges in the majority view noted that problems in implementation and shortcomings do not make Section 57 unconstitutional. The SC noted that the Central government had given sufficient reasons to uphold Section 57 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 and can’t throw baby out with bathwater. It is better to be unique than to be best. The uniqueness of UID is the difference as claimed by Government of India and it empowers the marginalized section of society 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.
Even in case of the need of Adhaar as identified 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. The SC also asked the Central government to introduce a robust data protection law as soon as possible.
In an interesting debate on public interest versus state interest, Justice Sikri said, “We follow the “larger public interest” as against the “compelling public state interest”. Respect grounded in human dignity is exposited in the judgment. Also discussed is dignity not only in reference to an individual but also dignity within the community. ”
The Lone Dissenting Voice
It is also important to note the scope of the dissenting view of Justice Chandrachud. He noted that allowing private players to use Aadhaar will lead to profiling which could be used in ascertaining political views of citizens. Mandating Aadhaar for benefits and services under Section 7 would lead to a situation in which citizens will not be able to live without Aadhaar. Hence, Section 7 is arbitrary and unconstitutional. Section 7 of the Act suffers from over breadth because it uses services and benefits enable the government to regulate every facet of a person’s life. Legitimate aim of state cab is fulfilled by using less intrusive methods.
He also held that Aadhaar cannot have been a Money Bill. Passing a Bill which is not a Money Bill is the subterfuge and a fraud on the constitution.
He succinctly noted that at the heart of the Aadhaar project lays power. Justice Chandrachud said, “Our decision must understand the dilemma between technology and power. And mark areas where the sanctity of individual is inviolable. Society is witnessing a shift into a knowledge economy. At the heart of the project lays power.”
The brainchild of the UPA government, the Aadhaar Bill was passed by the Narendra Modi government in 2016, with the mode of the passage of the Bill itself raking up controversy. The government termed the Aadhaar Act, 2016, a Money Bill and passed it in Lok Sabha. However, former Union Minister Jairam Ramesh challenged the manner used for the passage of the Aaadhar Act and the case was clubbed with the petitions, on which the SC has now given this verdict.
Aadhaar is presently the world’s largest biometric and identity database with 122.56 crore numbers issued to Indian citizens. These have been used for 2,322 crore authentications.
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. Even the majority of the judges signaled significant concern by reading down portions.