The Supreme Court of India, today, gave its final judgment in the Aadhaar Cases. The decision has been long awaited because of the intense public interest in the matter as well as the scale of the Aadhaar program.

The judgment to uphold the constitutional validity of the Aadhaar Act was delivered by a 5 judge constitutional bench in the ratio of 4:1. Justice Chandrachud dissented with the majority view stating that “the Aadhaar Act is wholly unconstitutional and that “Constitutional guarantees cannot be compromised by vicissitudes of technology”.

What was the Issue About?

The Aadhaar cases began in 2012 when the first petition challenging the Aadhaar Act and the Scheme thereunder was filed before the Supreme Court. There were multiple petitions over the course of five years challenging various aspects of the Scheme and more recently the constitutionality of the Act itself, post the Right to Privacy judgment.

The main issues all these petitions raised collectively, and that the Court decided on where:

  1. Whether the Aadhaar Act could be introduced as a money bill?
  2. Whether the Aadhaar Act and Scheme were violating the citizens’ Fundamental Right to Privacy?
  3. Whether the collection of personal data from citizens including their biometric information could result in profiling and the creation of a surveillance state?
  4. Whether the Aadhaar was exclusionary in nature vis-à-vis the welfare delivery system and thereby resulting in marginalization of certain sections of society?
  5. Whether Aadhaar linking for the provision of basic services should be mandatory or not?
  6. Whether the Aadhaar Act and Scheme make sufficient provision for data protection?

What did the Supreme Court Decide?

In answer to the questions raised surrounding the Aadhaar Act and Scheme, the Supreme Court finally gave its verdict, clarifying its legal stand and constitutionality. The highlights of the Court’s decision were:

  • The majority upheld the constitutional validity of the Aadhaar Act. The Act and Scheme do not violate any fundamental rights, including the recently recognized right to privacy, nor do they trample over constitutional guarantees.
  • The Act was upheld as a money bill as it involves expenditures from the Consolidated Fund
  • The Aadhaar Scheme facilitates the Government in fulfilling its constitutional obligation to provide welfare services to the citizens
  • The Aadhaar Act and Scheme do not violate the right to privacy. However, there is an urgent need for a robust and independent data protection framework. This is best served and achieved by due consideration of the Srikrishna Committee Report and the due passage of the Personal Data Protection Bill, 2018.
  • The Aadhaar Act and Scheme do not create a surveillance state. The Act contains adequate safeguards through its structure. Moreover, the threat of profiling is unsubstantiated as biometric and demographic data proves inadequate for such analytics.
  • Some of the provisions of the Act have been modified. First, duration of retaining authentication records has been limited to six months. Second, disclosure of individual information can only be done after giving the individual an opportunity to be heard. Third, private and corporate bodies cannot access or retain Aadhaar data.
  • Access to security agencies for national security purposes in its present form has been struck down. The Court has urged the Government to devise a transparency and accountability based system for intelligence gathering.
  • Linking the Aadhaar is no longer mandatory for opening a bank account, obtaining a SIM Card, and admissions in schools. It remains mandatory for filing IT Returns and for availing welfare scheme benefits.
  • The Supreme Court has also advised the Government to bring in an amended provision allowing individuals to file complaints in the event of Aadhaar data thefts.

What was the Dissenting Judgment?

Justice Chandrachud was the sole dissenting judge on the Bench, who stated that the Aadhaar Act was wholly unconstitutional and should be struck down. He stated that the Act did not qualify as a money bill and pushing it through as such was “a fraud on the Constitution”. Further, he stated that Act had potential for misuse and surveillance because it violated information privacy norms and compromised constitutional guarantees. According to him, allowing private and corporate entities access to Aadhaar data was in violation of Articles 14 and 21. Finally, he concluded that the Aadhaar Act “suffered from constitutional invalidity” from its inception and thus, all mandatory linking of the Aadhaar was subsequently struck down.

What will Change?

The impact of the verdict will be felt in some changes regarding processes for certain services such as:

  • Banks and Telecom companies cannot demand the Aadhaar as a mandatory documentary filing for opening bank accounts or providing SIM Cards
  • Private entities in possession of or having access to Aadhaar data will have to erase the same from their databases
  • The RBI’s Know Your Customer norms relying on the Aadhaar will be subject to revision and we will have to wait to determine what the new regulations will be
  • The CBSE, UGC, and NEET examinations will no longer need the Aadhaar
  • Law enforcement actions to crackdown on money laundering, cyber terrorist activities, and benami transactions will come under scrutiny
  • Alternative remedies need to be developed in the event of Aadhaar authentication failure to ensure no benefits are being denied to any person

What Next?

Although the Aadhaar verdict upholds the constitutional validity of the Act and Scheme, it has effectively done away with its legitimate purposes and its functionality. Moreover, the modifications to the Act will also impact different laws, both existing and upcoming, such as banking and telecom regulation, national security activities, and the Protection of Personal Data Bill, 2018 to name a few. The upcoming days ahead will tell us what the impact of this judgment will be in terms of implementation and how the Aadhaar Scheme changes from hereon out.

 

Neeraj Aarora

Advocate-on-Record

Supreme Court of India

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