In upholding the Constitutional validity of the Aadhaar programme in a 4-1 ruling, a Constitution Bench of the Supreme Court also limited the scope of the biometric project, particularly on sharing data with private entities and ruled that Aadhaar was no longer mandatory for bank accounts, mobile connections, pension or school admissions.
Full Text | Supreme Court Aadhaar judgment
The majority verdict by Chief Justice Dipak Misra and Justices A K Sikri, who wrote the majority judgement, and A M Khanwilkar besides chastising the Centre for trying to push Aadhaar on children had a range of suggestions to strengthen the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016. It also barred corporate bodies from using Aadhaar for authentications, unless backed by a law and ruled that the UIDAI cannot store any metadata related to Aadhaar-based authentications or authentication history for more than six months. The court also directed the government to amend how Aadhaar details can be shared for national security purposes.
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On Section 57 of the Aadhaar Act, which permitted private entities like telecom companies or other corporates to avail biometric Aadhaar data, Justice Sikri said it “creates an open ended and unspecified set of laws and contracts for which Aadhaar can be used and defeats the principle of informed consent at the time of enrolment and purpose limitation”.
Striking down a part of the section, which allowed corporates to use Aadhaar-based authentications, the Court said, “this part of the provision which enables body corporate and individuals also to seek authentication, that too on the basis of a contract between the individual and such body corporate or person, would impinge upon the right to privacy of such individuals. This part of the section, thus, is declared unconstitutional.”
The Court also struck down Section 33(2) of the Act, which permits disclosure of information “including identity information or authentication records, made in the interest of national security” directed by an officer “not below the rank of Joint Secretary”.
“However, for determination of such an eventuality, an officer higher than the rank of a Joint Secretary should be given such a power. Further, in order to avoid any possible misuse, a Judicial Officer (preferably a sitting High Court Judge) should also be associated with,” Justice Sikri said.
Similarly, reading down Section 33(1), which allows the data of any person to be shared on orders of a district judge, the Court added a provision that the individual “whose information is sought to be released shall be afforded an opportunity of hearing”.
The Supreme Court also disallowed the amendment to the Prevention of Money Laundering Act, that mandated linking bank accounts to Aadhaar numbers, ruling that it violates the Right to Privacy of a person while upholding that Aadhaar numbers need to be linked to Permanent Account Numbers (PAN).
It has also quashed the order of the Department of Telecom that had made linking of mobile numbers to Aadhaar numbers compulsory finding it “illegal and unconstitutional as it is not backed by any law and is hereby quashed”.
Chastising the Centre for trying to bring children under the ambit of Aadhaar, for admission to schools or allowing them to sit for examinations, Justice Sikri said the government “made an attempt to justify the linkage of Aadhaar with child information and records by arguing that there have been several instances of either impersonations at examinations or bogus admissions which have the potential to pilfer away various scholarship schemes which the Government provides for weaker sections from time to time”.
Justice Sikri said that even if that was the objective, “then also requirement of Aadhaar cannot be insisted at the time of admission but only at the stage of application for Government scholarships”. He said that impersonation at examinations can be “easily checked and contained” by other means and added sternly that when alternative means exist “insistence on Aadhaar would not satisfy the test or proportionality”.
Holding that the 12-digit unique identity “is a voluntary scheme”, Justice Sikri said that for school admissions, the requirement of Aadhaar “would not be compulsory as it is neither a service nor subsidy”. The judgment clarified that for children between the age of 6 and 14 years, education is a fundamental right and not a benefit.
While upholding the validity of Aadhaar enrolments from 2009 — when the project came into existence — to March 2016, the Court gave people enrolled during this period the option of opting out. It said that “the problem can be solved by eliciting consent of all those persons who were enrolled prior” to when the Aadhaar Act was passed. It repeated that “enrolment is voluntary in nature” thus, those who “refuse to give the consent, they would be allowed to exit from Aadhaar scheme”.
The Court also gave any “victim”, who believes rights have been violated, the right to file a complaint against UIDAI. Earlier, Section 47 of the Aadhaar Act allowed cognisance of offence only on a complaint made by the UIDAI or officers authorised by it.
The Court restricted the government from expanding the scope of the subsidies listed under Section 7, “thereby widening the net of Aadhaar, where it is not permitted otherwise”.