The Supreme Court on Wednesday upheld the Constitutional validity of the Centre’s flagship Aadhaar scheme, but introduced safeguards against collection of citizens’ data by banks, telecom operators, online shopping platforms, private and corporate entities. The court also ruled that Aadhaar authentication data cannot be stored for more than six months and directed the Government to ensure that Aadhaar is not given to illegal immigrants.
A five-judge Constitution Bench headed by Chief Justice Dipak Misra held that while Aadhaar would remain mandatory for filing of IT returns, allotment of PAN, and availing of welfare schemes, the SC struck down provisions that empowered banks, telecom operators and private and corporate entities right to collect citizens’ Aadhaar data to provide related services.
The court also ruled that Aadhaar would not be mandatory for school admissions, as also for the examinations conducted by the Central Board of Secondary Examination, National Eligibility cum Entrance Test (NEET) for medical entrance and the University Grants Commission.
The Bench also struck down the national security exception under the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016.
The five judges came out with three sets of judgments. While Justice AK Sikri wrote the judgment for himself, the CJI and Justice AM Khanwilkarm, Justice DY Chandrachud, and Justice Ashok Bhushan wrote separate judgments.
Justice Bhushan said he concurred with the views of the majority, while Justice Chandrachud said he was expressing certain views different from that of the judgment of the three judges.
While Justice Sikri struck down Section 57 of the Act permitting private entities like telecom companies or other corporates to avail Aadhaar data, the majority verdict upheld the passage of the Aadhaar Bill as a Money Bill by the Lok Sabha, but justice Chandrachud described “this as a Constitutional farce.”
Observing that there was nothing in the Aadhaar Act that violated right to privacy of an individual, Justice Sikri asked the Government to bring in a robust data protection regime as early as possible, noting that the attack on Aadhaar by the petitioners was based on violation of rights under the Constitution, which they felt led to a surveillance state.
Pointing out that there has been minimal demographic and biometric data collected by the Unique Identification Authority of India (UIDAI) for Aadhaar enrolment, Justice Sikri said unique identification proof empowered and gave identity to the marginalised sections of society and there was no possibility of obtaining a duplicate as there existed a sufficient defence mechanism.
Justice Bhushan agreed with the view that there was no need to link Aadhaar with mobile numbers and rejected the argument that revealing demographic information for Aadhaar amounted to violation of Right to Privacy, saying an individual revealed such data for other ID proofs.
Noting that mobile has become an important feature of life and its seeding with Aadhaar posed a grave threat to privacy, liberty, autonomy, Justice Chandrachud favoured deletion of consumers’ Aadhaar data by the mobile service providers.
Maintaining that the Prevention of Money Laundering Act Rules proceeded on the assumption that every bank account holder is a money launderer, he said the assumption that every individual who opens a bank account is a potential terrorist or a launderer was “draconian”.
Justice Chandrachud also said the collection of data could lead to individual profiling of citizens and the Aadhaar scheme violated informational privacy, self-determination and data protection which has been admitted by UIDAI.
He said the data was vulnerable to be misused by third party and private vendors, and that too, without the consent of an individual. He said the Aadhaar project has failed to remedy the flaws in its design, leading to exclusion.
The court said despite the passions, emotions and annoyance exhibited by both sides in equal measure during the arguments, it was not influenced by the heat generated by the debates.
“The issue has generated heated public debate as well. Even outside the court, there are groups advocating in favour of the Aadhaar scheme and those who are stoutly opposing the same,” said the Bench.
Justice AK Sikri, who wrote the majority verdict for Chief Justice Dipak Misra, AM Khanwilkar and himself, said, “Interestingly, it is not only the commoners who belong to either of the two groups but intelligentsia is also equally divided. There have been number of articles, interviews for discourses in favour of or against Aadhaar.”
In a separate 567-page verdict, Justice Sikri said those in favour see Aadhaar project as ushering the nation into a regime of good governance, advancing socio-economic rights, economic prosperity and in the process they claim that it may make the nation a world leader.
“Notwithstanding the passions, emotions, annoyance, despair, ecstasy, euphoria, coupled with rhetoric, exhibited by both sides in equal measure during the arguments, this court while giving its judgment on the issues involved is required to have a posture of calmness coupled with objective examination of the issues on the touchstone of the constitutional provisions,” said the verdict.
The apex court noted that the very scheme of Aadhaar and the architecture built thereupon has received scathing criticism from a section of the society.
“According to them, Aadhaar is a serious invasion into the right to privacy of persons and it has the tendency to lead to a surveillance state where each individual can be kept under surveillance by creating his/her life profile and movement as well on his/her use of Aadhaar,” it said.
It noted that there has been no other subject matter in recent past which has evoked the kind of intensive and heated debate wherein both sides, for and against, argued so passionately in support of their respective conviction.
“The wide range of issues involved in this case is evident from the fact that it took almost four months for the parties to finish their arguments in these cases, and the court witnessed highly skilled, suave, brilliant and intellectual advocacy, with the traces of passions as well,” the court said.
Referring to the arguments of Attorney General KK Venugopal, the Bench said that he had cited various commendations of Aadhaar scheme by certain international bodies, including the World Bank but it was not influenced by such views expressed either in favour or against Aadhaar.
It said that those opposing Aadhaar are apprehensive that it may excessively intrude into the privacy of citizenry and has the tendency to create a totalitarian state, which would impinge upon the democratic and constitutional values.
The apex court said ‘Aadhaar’ has become a symbol of a digital economy and opened up multiple avenues for a common man. The scheme, conceptualised in 2006 and launched in the year 2009 with the creation of UIDAI, has secured the enrolment of almost 1.1 billion people in the country, it said.
Its use has spread like wildfire, which is the result of robust and aggressive campaigning done by the Government, its agencies and other such bodies and has “virtually become a household symbol”.