Journalism of Courage
In a landmark majority ruling on the world’s largest biometric identity project, the Supreme Court Wednesday upheld the Constitutional validity of the Aadhaar Act on the ground that it “struck a fair balance between the right of privacy of the individual with right to life of the same individual as a beneficiary” but ring-fenced the law from possible misuse by the State and private entities.
While it upheld the linking of the permanent account number (PAN) to the unique Aadhaar number and the notifications allowing people to avail subsidies and benefits provided by the government, a five-judge Constitution Bench, in a 4-1 verdict on several petitions, struck down the requirement of linking Aadhaar to bank accounts and mobile phone numbers, and on its insistence for pension and school admissions. Full Text | Supreme Court Aadhaar judgment
It expressed the hope that the government “shall not unduly expand the scope of ‘subsidies, services and benefits’ thereby widening the net of Aadhaar, where it is not permitted otherwise”.
Four of five judges on the Bench — Chief Justice Dipak Misra and Justices A K Sikri, A M Khanwilkar and Ashok Bhushan — backed The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services), Act 2016 in two separate concurring judgments.
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Justice D Y Chandrachud gave a dissenting verdict. “The entire Aadhaar programme, since 2009, suffers from Constitutional infirmities and violations of fundamental rights. The enactment of the Aadhaar Act does not save the Aadhaar project. The Aadhaar Act, the Rules and Regulations framed under it, and the framework prior to the enactment of the Act are unconstitutional,” he said, adding that its passage as a Money Bill too amounted to “a fraud on the Constitution”.
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The judges declared as unconstitutional a part of Section 57 of the Act which permits private body corporates and individuals to seek Aadhaar authentication, saying this “would impinge upon the right to privacy of such individuals”. They ruled that Aadhaar authentication data cannot be stored for more than six months. The government was also directed not to allot Aadhaar to illegal immigrants.
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Asking the government to draw up a data-protection law, the judges said: “We have also impressed upon the respondents… to bring out a robust data protection regime in the form of an enactment on the basis of Justice B N Srikrishna (retd) Committee Report with necessary modifications thereto as may be deemed appropriate.”
Justice Sikri, writing the order for self, CJI Misra and Justice Khanwilkar on a clutch of petitions that followed the initial one in 2012 by former Karnataka High Court judge K S Puttaswamy, said: “Aadhaar Act is a beneficial legislation which is aimed at empowering millions of people in this country… In such a scenario, only on apprehension, the project cannot be shelved.”
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Allaying apprehensions that Aadhaar will lead to a surveillance state — it was one of the contentions of the petitioners — the majority ruling said “the architecture of Aadhaar as well as the provisions of the Aadhaar Act do not tend to create a surveillance state. This is ensured by the manner in which the Aadhaar project operates”.
There was a legitimate state aim, the judges said, in introducing Aadhaar. “In a welfare State, where measures are taken to ameliorate the sufferings of the downtrodden, the aim of the Act is to ensure that these benefits actually reach the populace for whom they are meant. This is naturally a legitimate State aim,” they said.
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Taking a “holistic view”, the court said “enrolment in Aadhaar of the unprivileged and marginalised section of the society, in order to avail the fruits of welfare schemes of the Government, actually amounts to empowering these persons. On the one hand, it gives such individuals their unique identity and, on the other hand, it also enables such individuals to avail the fruits of welfare schemes of the Government which are floated as socio-economic welfare measures to uplift such classes. In that sense, the scheme ensures dignity to such individuals. This facet of dignity cannot be lost sight of and needs to be acknowledged.”
“We are, by no means, accepting that when dignity in the form of economic welfare is given, the State is entitled to rob that person of his liberty. That can never be allowed. We are concerned with the balancing of the two facets of dignity. Here we find that the inroads into the privacy rights where these individuals are made to part with their biometric information, is minimal. It is coupled with the fact that there is no data collection on the movements of such individuals, when they avail benefits under Section 7 of the Act thereby ruling out the possibility of creating their profiles,” the majority ruling stated.
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The court struck down Section 33(2) of the Act which allows disclosure of information of a user in the interest of national security. It said though the provision cannot be faulted, the power of determination of such an eventuality, should be given to an officer higher than the rank of a Joint Secretary. “Further, in order to avoid any possible misuse, a Judicial Officer (preferably a sitting High Court Judge) should also be associated with” it, the Bench said, giving the government liberty to re-enact the provision with safeguards.
It also read down Section 33(1) of the Act which prohibits disclosure of information, including identity information or authentication records, except when it is by an order of a court not inferior to that of a District Judge. The Bench said the individual whose information is sought to be released, shall be afforded an opportunity of being heard before it is released.
The court said Aadhaar cannot be sought for school admissions and made parental consent mandatory for enrolling children under the Act. The majority ruling said that such children should be given the right to exit from Aadhaar, if they so choose, upon attaining age of majority. “Benefits to children between 6 to 14 years under Sarva Shiksha Abhiyan, likewise, shall not require mandatory Aadhaar enrolment,” it said.
It would also not be mandatory for examinations conducted by the CBSE, UGC and NEET for medical entrance, the court said.
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The majority ruling upheld the government’s decision to introduce the Aadhaar Bill as a Money Bill.
Justice Ashok Bhushan, in a separate concurring judgment, also upheld introduction of Aadhaar Bill as a Money Bill but added that this decision of the Speaker could be subject to judicial review. Justice Sikri’s majority judgment did not get into the question on whether the Speaker’s decision is subject to judicial review.
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But Justice Chandrachud, in his dissenting judgment, said “passing of a Bill as a Money Bill, when it does not qualify for it, damages the delicate balance of bicameralism which is a part of the basic structure of the Constitution.” He was also of the view that the Speaker’s decision could be reviewed by the judiciary.
