The Supreme Court Wednesday struck down Sections 33(2), 47 and 57 of the Aadhaar Act. While reading out the majority judgment, Justice A K Sikri upheld the Aadhaar Act as constitutionally valid and said there was sufficient defence mechanism for authentication. Justice Sikri read the judgment on behalf of Chief Justice of India Dipak Misra and Justice A M Khanwilkar.
What is Section 33(2) of Aadhaar Act?
Section 33 of the Aadhaar Act refers to disclosure of information in certain cases. The Supreme Court has read down Section 33(1) while striking down 33(2). Section 33(1) allows disclosure of information, including identity and authentication records, if ordered by a court not inferior to that of District Judge. Reading down this sub-section, the SC has said individuals should be given the opportunity of hearing.
Section 33(2) allows identity and authentication data to be disclosed in the interest of national security on direction of an officer not below the rank of Joint Secretary to the Government of India.
Section 33(2) reads: “Section 33 (1) Nothing contained in sub-section (2) or sub-section (5) of section 28 or sub-section (2) of section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made pursuant to an order of a court not inferior to that of a District Judge:
This sub-section reads, “… shall apply in respect of any disclosure of information, including identity information or authentication of records, made in the interest of national security in pursuance of a direction of an officer not below the rank of Joint Secretary to the Government of India specially authorised in this behalf by an order of the Central Government:
Provided that every direction issued under this sub-section, shall be reviewed by an Oversight Committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology, before it takes effect:
Provided further that any direction issued under this sub-section shall be valid for a period of three months from the date of its issue, which may be extended for a further period of three months after the review by the Oversight Committee.”
What is Section 47 of the Aadhaar Act?
Section 47 of the Aadhaar Act refers to cognizance of offences. Under this Section, no court is allowed to take cognizance of any offence punishable under this Act, except on a complaint made by the authority of officer or person authorised by it. The Section also disallows courts below that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate to try any offence punishable under this Act.
What is Section 57 of Aadhaar Act?
Section 57 of the Aadhaar Act refers to the use of Aadhaar data by any “body corporate or person” to establish the identity of an individual. Justice Sikri, in his judgment, found this section to be unconstitutional. It was under this provision that private companies like Paytm and Airtel Payments Bank sought Aadhaar details from customers.
Section 57 reads: “Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect: Provided that the use of Aadhaar number under this section shall be subject to the procedure and obligations under section 8 and Chapter VI.”
Reading down Section 2(d) of the Aadhaar Act, the court also ruled that authentication record should not include metadata. Records cannot be kept beyond the period of six months.
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