The Supreme Court, in a majority opinion on Wednesday, upheld Aadhaar as a reasonable restriction on individual privacy that fulfils the government’s “legitimate aim” to provide dignity to a large, marginalised population living in abject poverty.
“The Constitution does not exist for a few or minority of the people of India, but ‘We the People’,” the Supreme Court observed.
The majority view by Chief Justice of India Dipak Misra and Justices A.K. Sikri and A.M. Khanwilkar declared Aadhaar a “document of empowerment.” An “unparalleled” identity proof. A document that cannot be duplicated unlike PAN, ration card, and passport.
“It is better to be unique than the best. The best makes you number one, but unique makes you the only one,” Justice Sikri, who authored the majority opinion, wrote.
Justice D.Y. Chandrachud wrote a sharp dissent, declaring Aadhaar unconstitutional. Justice Ashok Bhushan, in a separate opinion, concurred with the majority view, saying Aadhaar has been widely accepted. The three opinions of the Constitution Bench span 1,448 pages.
Justice Sikri said technology had become a vital tool for ensuring good governance in a social welfare state. Schemes like PDS, scholarships, mid-day meals, LPG subsidies, involve a huge amount of money and “fool-proof” Aadhaar helped welfare reach the poor.
Upholding the passage of the Aadhaar Act as a Money Bill, the Supreme Court said neither were individuals profiled nor their movements traced when Aadhaar was used to avail government benefits under Section 7 of the Aadhaar Act of 2016.
The statute only sought “minimal” biometric information, and this did not amount to invasion of privacy.
Bar on bank-mobile link
The majority opinion upheld the PAN-Aadhaar linkage, but declared linking Aadhaar with bank accounts and mobile SIM cards unconstitutional.
The court insulated children from the Aadhaar regime. The card was not necessary for children aged between six and 14 under the Sarva Shiksha Abhiyan as right to education was a fundamental right. Statutory bodies like CBSE and UGC cannot ask students to produce their Aadhaar cards for examinations like NEET and JEE. Permission of parents and guardians was a must before enrolling children into Aadhaar, the Supreme Court declared. Children once they attained the age of majority could opt out of Aadhaar, the Supreme Court said.
It said it was not trivialising the problem of exclusion faced by the elderly, the very young, the disabled and several others during the authentication process.
Authentication was found to be only having a .232% failure, Justice Sikri pointed out. It was accurate 99.76% times, Justice Sikri said.
He reasoned that dismantling the scheme would only disturb this 99.76%.
The Supreme Court, in its majority opinion, said the remedy was to plug the loopholes rather than axe Aadhaar.
“We cannot throw the baby out with the bath water,” Justice Sikri wrote.
The court further directed the government and the Unique Identification Authority of India (UIDAI) to bring in regulations to prevent rightfully entitled people from being denied benefits.
Countering the argument that the Aadhaar regime would facilitate the birth of a “surveillance state”, Justice Sikri wrote that Aadhaar exhibited no such tendencies. Authentication transactions through Aadhaar did not ask for the purpose, nature or location of the transaction.
Besides, information was collected in silos and their merging was prohibited. The authentication process was not expanded to the Internet. The collection of personal data and its authentication was done through registered devices. The Authority did not get any information related to the IP address or the GPS location from where authentication was performed. “The Aadhaar structure makes it very difficult to create the profile of a person,” Justice Sikri reasoned.
However, the Supreme Court quashed or read down several provisions in the Aadhaar Act in order to de-fang any possibility of the state misusing data.
For one, the court held that authentication records should not be retained for more than six months. It declared the archiving of records for five years as “bad in law.” It also prohibited the creation of a metabase for transactions.
It read down Section 33 (1), which allowed the disclosure of Aadhaar information on the orders of a District Judge. This cannot be done now without giving the person concerned an opportunity to be heard.
The Supreme Court struck down Section 33(2), which allowed the disclosure of Aadhaar information for national security reasons on the orders of an officer not below a Joint Secretary.
It held that an officer above the Joint Secretary rank should first consult with a judicial officer, possibly a High Court judge, and both should decide whether information need to be disclosed in the national interest.
The court has struck down Section 47, which allows only the UIDAI to file criminal complaints of Aadhaar data breach.
Finally, it quashed that part of Section 57 of the Act which permits private companies from using Aadhaar data to authenticate a person.