The Supreme Court has upheld validity of The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, but the changes it has either made or recommended, will have a lasting impact on the Act.
While the petitioners had challenged at least 20 changes, the Supreme Court has gone into the validity of practically all the 59 Sections of the Act, upholding all but five Sections, which it has read down or struck down or recommended changes to.
The most prominent of these is regarding Section 57, which allowed Aadhaar to be used as an identity proof by the state and by corporate entities. Striking down the part of the Section which allowed corporates to use Aadhaar-based authentication, 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 challenges and changes within the Act start right from Section 2, which is about “definitions” of various elements. The Section has 24 sub-sections; the court made changes to two of them, Section 2(d) and 2(v). Section 2(d) defines “authentication record” and how authentications are to be recorded as mentioned in the Aadhaar (Authentication) Regulations, 2016. The court struck down Section 26(c) of these regulations, which had mandated that UIDAI will “store and maintain authentication data” which will include “meta data related to the transaction”. The court ruled that the meta data should not be stored.
Section 2(v), which described “residents” for Aadhaar has been changed by the court so that “it should not lead to giving Aadhaar card to illegal immigrants”.
The next Section to see changes is related to authentications and history of authentication transaction data. Section 27 of Authentication Regulations of 2016, which defines how long the authentication transaction history can be stored by UIDAI, has been struck down, disallowing UIDAI to store such data for more than six months.
Two changes have been made to Section 33, both about how and with whom the Aadhaar data can be shared. Section 33(1) states that identity and other information of an individual can be disclosed “pursuant to an order of a court not inferior to that of a District Judge”. The court has read down this Section, to include “that an individual, whose information is sought to be released, shall be afforded an opportunity of hearing. If such an order is passed, in that eventuality, he shall also have right to challenge such an order passed by approaching the higher court.”
Sub-section 2 of the same Section has been struck down, with the court asking the government to amend it as it stands. Section 33(2) mentions that the information can be disclosed “in national interest” if directed by a Joint Secretary or an higher officer, “specially authorised in this behalf by an order of the Central Government”. Quashing it, the court has given the government liberty to enact a suitable provision, as per which the order is made by “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 said.
In a significant change, UIDAI, which earlier was the sole authority to file complaint against itself, as per Section 47 of the Act, the verdict mentions that “it needs a suitable amendment to include the provision for filing of such a complaint by an individual/victim as well whose right is violated”, giving aggrieved individuals the right to file a complaint against UIDAI.
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