Justice D.Y. Chandrachud, who wrote the lone dissenting opinion declaring Aadhaar unconstitutional, held that the unique identity scheme reduces a person to a 12-digit number.
Justice Chandrachud observed, “If the requirement of Aadhaar is made mandatory for every benefit or service which the government provides, it is impossible to live in contemporary India without Aadhaar.”
“The legitimate aim of the state to provide dignity to the poor could have been fulfilled by adopting less intrusive measures. Why has Aadhaar been made the sole repository of identification?
“The state has failed to demonstrate that a less intrusive measure other than biometric authentication would not subserve its purposes,” he observed.
He said efficiency in governance could not steamroll fundamental freedoms. If so, there was a danger of a society crossing the line which divided democracy from authoritarian cultures.
“The entire Aadhaar programme, since 2009, suffers from constitutional infirmities and violations of fundamental rights. The enactment of the Aadhaar Act does not save the Aadhaar project. The Aadhaar Act, the Rules and Regulations framed under it, and the framework prior to the enactment of the Act are unconstitutional,” he held.
The absence of a legislative framework for the Aadhaar project between 2009 and 2016, before the Aadhaar Act came into existence, left the biometric data of millions of Indian citizens exposed to danger, Justice Chandrachud observed.
He did not agree with Justice Sikri’s majority view that since information was collected silos in Aadhaar, potential surveillance or profiling by the state or private entities was impossible. He countered that when Aadhaar was seeded into every database, it became a bridge across discreet data silos, which allowed anyone with access to this information to re-construct a profile of an individual’s life.
‘Fraud on statute’
The judge held the passage of the Aadhaar Act as a Money Bill unconstitutional. Passing of the Aadhaar Act as a Money Bill by superseding the Rajya Sabha was a “fraud on the Constitution.”
It may have been politically expedient for the ruling party at the Centre to bring the Aadhaar Act as a Money Bill, but it amounted to “subterfuge” and debasement of constitutional authorities, Justice Chandrachud said.
The judge said the Aadhaar was the frontier where “technology confronts the future of freedom itself.” Technology had reconfigured the role of the state, he pointed out.
He agreed with the majority view that Aadhaar should not be linked with bank accounts or mobile SIMs. He observed that phones were a storehouse of information about lifestyle and preferences of its users.
The judge directed mobile service providers to forthwith delete any information collected by them after linking Aadhaar with SIM.
Justice Chandrachud said that since the Aadhaar Act itself had been held unconstitutional, the seeding of Aadhaar with PAN cards cannot stand independently.
He also quashed the linking of Aadhaar numbers with bank accounts and all other account-based relationships, saying this gave an impression that “every individual who seeks to open an account in future is a potential money-launderer.”
Noting that perhaps no similar national identity programme like Aadhaar exists in the world, Justice Chandrachud countered the majority opinion on the Constitution Bench led by Chief Justice Dipak Misra that Aadhaar ensures dignity to the poor albeit at the cost of privacy of a few.
Justice Chandrachud said “one right cannot be taken away at the behest of the other”. Why is it that dignity to the poor can only come at the cost of the right to individual autonomy, data protection and dignity. Both these rights are protected by the Constitution.
Justice Chandrachud wrote that what was once a document to facilitate proof of identity, has now obliterated an individual’s right to decide how to identify himself or herself.
The judgment held there was no legal or statutory backing for collection of personal data by private entities prior to Aadhaar Act. UIDAI itself had owned up to data theft in the pre-Aadhaar Act days.
Significantly, Justice Chandrachud counters the majority view that Aadhaar information cannot be duplicated.
“Neither the Central government nor UIDAI have the source code for the deduplication technology which is at the heart of the programme. The source code belongs to a foreign corporation. UIDAI is merely a licensee,” Justice Chandrachud pointed out.
