SC upholds Aadhaar, says it's not needed for cellphones, banks

Aadhaar empowers marginalised sections of the society and gives them identity, which outweighs the harm, Supreme Court said, pronouncing the national identity card 'constitutionally valid' in response to petitions raising violation of privacy. 

• Who can and cannot ask for your Aadhaar number

Observing that Aadhaar neither tends to create a ‘surveillance state’, nor it infringed the Right to Privacy, the Supreme Court on Wednesday declared that the Centre's biometric identity project was constitutionally valid but limited the scope, ruling it is not mandatory for bank accounts, mobile connections or school admissions.

The verdict, which will have a far reaching impact, was widely welcomed, with both sides in the acrimonious debate over Aadhaar's merits, claiming victory.

In a 4-1 verdict that also quashed some contentious provisions of the Aadhaar act, a five-judge constitution bench headed by Chief Justice Dipak Misra, however, held Aadhaar would remain compulsory for filing of Income Tax(IT) returns and allotment of Permanent Account Number (PAN) and for availing facilities of welfare schemes and government subsidies.

"It is better to be unique than the best. Because, being the best makes you the number one, but being unique makes you the only one," said the top court after a long-drawn bruising legal battle against the government's ambitious project--the world's largest biometric ID database.

Ruling that seeding of Aadhaar would not be required for opening bank accounts, availing mobile services, by Central Board of Secondary Education, National Eligibility cum Entrance Test, Joint Entrance Examination, University Grants Commission and for admissions in schools and free education for children, the court observed that Aadhaar had also become a household name and that its use has spread like ‘wildfire’.

"Aadhaar gives dignity to the marginalised. Dignity to the marginalised outweighs privacy," said justice Sikri, who was in the majority, while reading out the operative part of the 1,448-page judgment in the packed courtroom of the CJI.

"One can't throw the baby out with the bathwater."

It struck down as unconstitutional the portion of Section 57 of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 that permitted private entities like telecom companies or other corporates to avail of the biometric Aadhaar data.

Justice D Y Chandrachud gave a dissenting judgment in which he ruled the Aadhaar Act should not have been passed as Money Bill as it amounts to a fraud on the Constitution and is liable to be struck down. But the majority verdict by justices A K Sikri, Ashok Bhushan and A M Khanwilkar besides the CJI upheld the passage of the Aadhaar Bill as a Money Bill by the Lok Sabha.

Observing that Aadhaar was meant to help the benefits reach the marginalised sections of society, it said the scheme takes into account the dignity of people not only from personal but from the community point of view as well and served the much bigger public interest.

The court also upheld the passage of the Aadhaar Act as a Money Bill saying the funds for subsidies and welfare schemes are drawn from the Consolidated Fund of India.

The Congress had alleging that the Rajya Sabha was bypassed as the ruling combine lacked majority in the upper house.

Justice A K Sikri, writing the judgment for the CJI, himself and Justice A M Khanwilkar, set aside several provisions of the Aadhaar Act and other laws including the Prevention of Money laundering Act that had made the twelve-digit national identifier mandatory.

Justice Sikri, in his 567 page verdict, apprehensions by striking and reading down certain provisions and said "Authentication records are not to be kept beyond a period of six months, as stipulated in Regulation 27(1) of the Authentication Regulations.

“This provision which permits records to be archived for a period of five years is held to be bad in law,” the bench said, adding meta data relating to transaction, as provided in one of the regulations, in the present form was ‘impermissible’ and needed amendment.

The verdict also struck down sections 33(1) which allowed the Unique Identification Authority of Inida to release information saying it cannot be done without an opportunity of hearing.

The top court also set aside the Section 33(2) of the Act in the present form which allowed release of information of an Aadhaar holder due to the security reasons saying it can be done by involving an officer above the rank of Joint secretary and a sitting judge of the high court can also be involved.

The bench asked the Centre to also bring about a ‘robust data protection regime’ to ensure that the personal data of an individual are protected.

The submission that Aadhaar violated Right to Privacy did not cut much ice as the bench said, "It is held that all matters pertaining to an individual do not qualify as being an inherent part of right to privacy. Only those matters over which there would be a reasonable expectation of privacy are protected by Article 21."

Union Finance Minister Arun Jaitley hailed the verdict as historic while Information Technology and Law and Justice Minister Ravi Shankar Prasad said it ‘empowered democracy’.

Former Attorney General Mukul Rohatgi said the judgment was ‘balanced’.

Welcoming the verdict, Congress leader Kapil Sibal told reporters his party supports the views of Justice Chandrachud.

Sibal said the Congress will certainly move court if amendments in the Aadhaar Act brought after this verdict are not brought in Rajya Sabha for discussion.

The verdict was pronounced on a bunch of 31 petitions, including one by former high court judge K S Puttaswamy after concluding on May 10 a marathon hearing that went on for 38 days, spanning four-and-half months.

In his separate verdict, Justice Ashok Bhushan said that collection and retention of biometric data under the Aadhaar Act doesn't violate the Right to Privacy and would not lead to ‘pervasive surveillance’ as the information sought is only for identification of an individual.

Concurring with a three-judge majority view, Justice Bhushan said an individual while interacting with society reveals several information, like name, age, date of birth and residential address, which is also sought under Aadhaar.

Therefore, there can be ‘no reasonable expectation of privacy’ in giving such data, he said.

He also said that the biometric information obtained for Aadhaar enrolment were photographs, fingerprints and iris scan, ‘which are least intrusion in physical autonomy of an individual’.

"Aadhaar is contemplated as one pan India identity, which is acceptable proof of identity in every nook and corner of the country," the judge said, adding that the conclusion would be fully applicable to transgenders as well.

Justice Bhushan also said Right to Privacy of an individual would not be affected by the storage and retention of such information and dispelled fears that it could lead to ‘pervasive surveillance’, saying the Aadhaar Act and regulations framed under it ‘provide protection and safety of the data received’.

The Supreme Court said it was not influenced by the views of the heated public debate inside and outside the court in favour or against the Aadhaar scheme, which has secured the enrolment of almost 1.1 billion people in the country.

Not only the commoners, but the intelligentsia too were equally divided on the issue and there have been a number of articles and interviews for discourse in favour of or against the biometric ID, it noted.

“We clarify that we have not been influenced by such views expressed either in favour or against Aadhaar,” the bench said.

It said that despite the passions, emotions and annoyance exhibited by both sides in equal measure during the arguments, the court while giving its judgment on the issues involved ‘is required to have calmness coupled with objective examination of the issues on the touchstone of the constitutional provisions’.
"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.

The SC said the aim behind launching of the Aadhaar scheme was ‘inclusion’ of the marginalised section of society and the project cannot be crucified on the possibility of failure in authentication.

The top court said it was conscious of the probability of failure in Aadhar's authentication process and it would be appropriate if a suitable provision was made in the regulations for establishing an identity by alternate means in such situations.

Referring to the submission of the UIDAI which claimed that biometric accuracy of Aadhaar was 99.76 per cent, the court said if the project is shelved, 99.76 per cent beneficiaries are going to suffer which would lead to their exclusion.

"The Authority has claimed that biometric accuracy is 99.76 per cent and the petitioners have also proceeded on that basis. In this scenario, if the Aadhaar project is shelved, 99.76 per cent beneficiaries are going to suffer. Would it not lead to their exclusion?

"It will amount to throwing the baby out of hot water along with the water. In the name of 0.232 per cent failure (which can in any case be remedied), should we revert to the pre-Aadhaar stage with a system of leakages, pilferages and corruption in the implementation of welfare schemes meant for marginalised section of the society, the full fruits thereof were not reaching to such people," the court said.