Aadhaar valid; but no phone, bank link

New Delhi: The Supreme Court on Wednesday, in a majority verdict of 4:1, held that the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016 is constitutionally valid, but made it clear that a person’s rights cannot be denied on the ground of lacking the unique ID.

The court upheld linking of PAN with Aadhaar, and made it mandatory for filing income-tax returns and for receiving benefits drawn from the Consolidated Fund of India. But it set aside linking Aadhaar to bank accounts and for mobile phone numbers.

Making an exception for children, the court said that no child can be denied benefits of any scheme if he or she doesn’t have an Aadhaar card.

So no Aadhaar is needed for school admissions or any other government scheme which benefits children. “CBSE, NEET, UGC cannot make Aadhaar mandatory, also it is not compulsory for school admissions,” the Supreme Court said.

The Supreme Court struck down Section 57 of the Aadhaar Act as “unconstitutional”. This means that no company or private entity can seek Aadhaar identification. Further, authentication done by private parties while verifying Aadhaar cannot be stored by the UIDAI beyond six months.

“We have concluded that it is simply difficult to care the profile of a person on the basis of data stored in CIDR (Central ID repository). Authentication data should not be stored beyond six months. Current rule that it can be archived for five years struck down,” Justice Sikri said.

In all, three judgments were delivered by the five-judge Constitution Bench comprising Chief Justice Dipak Misra and Justices A.K. Sikri, A.M. Kanwilkar, D.Y. Chandrachud and Ashok Bhushan.

The majority judgment was read out by Justice Sekri on behalf of Chief Justice Misra and Justice Khanwilkar.

Justice Ashok Bhushan read a separate judgment, mostly concurring with the majority judgment.

Justice Chandrachud dissented with the other judges and in his order, which highlighted several flaws in the Aadhaar programme, said: “Aadhaar Act is liable to be declared as unconstitutional”.

While picking holes in the Aadhaar law, he said that UIDAI has admitted that it stores vital data, which is violative of the right to privacy. There is also no accountability/responsibility for storage or protection of data of citizens, he said, and warned that leakage from the central database will pave the way for surveillance. “Potential surveillance is possible through Aadhaar,” he said.

Raising the issue of algorithms by foreign companies such as L1 and Accenture used by UIDAI, he said: “Rights of citizens and national security cannot be protected by merely a contract between UIDAI and private foreign corporations.”

Justice Chandrachud also differed with the majority judgment on Aadhaar giving dignity to the marginalised. “One right cannot take away another. Dignity to the marginalised cannot do away with right of a person to bodily autonomy,” he said.

The bench’s four other judges, however, concurred that Aadhaar “serves a bigger public interest”. Observing that Aadhaar is meant to help benefits reach marginalised sections of society, they said the scheme served a much bigger public interest and shelving it at this stage could harm people.

“Unique identification proof empowers and gives identity to marginalised sections of society,” Justice Sikri said.

Addressing worries of exclusion, he said: “For the exclusion of a minimal three per cent, 97 per cent cannot be denied the benefits of Aadhaar… One can’t throw the baby out with the bathwater.”

The court also held that the passage of the bill as a money bill was valid, another aspect that was challenged by the petitioners.

Justice Sikri said obtaining an Aadhaar card would continue to remain voluntary with an option to exit. “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,” he said, and added that the Aadhaar number, given to a particular individual, is treated as unique and cannot be assigned to any other person.

The bench also struck down the national security exception under the Aadhaar Act that allowed the government to share Aadhaar data, citing security considerations. Sharing of any Aadhaar data with any entity, without the individual’s consent, is now illegal.

Justice Sikri said the attack of the petitioners on Aadhaar is based on the argument that it is a great risk to the liberties of citizens and has the potential to enable a surveillance state. To this, he (Sikri) said proportionality is to be adjudged on the basis of norms such as expectation of privacy, compelling state interest and larger public interest.

On proportionality, he said certain aspects are needed to be satisfied. Prevention of leakage and pilferage is a valid goal, he said but added that there is valid and legitimate aim and Aadhaar is a suitable means to achieve these goals.

“Minimal demographic and biometric data of citizens are collected by UIDAI for Aadhaar enrolment and the system is serving much bigger public interest... We are of the view that there are sufficient safeguard to protect data collected under Aadhaar scheme,” Justice Sikri said.

“As of today, we do not find anything in the Aadhaar Act which violates the right to privacy of the individual citizen,” said the majority verdict. “Aadhaar cannot be duplicated and it is a unique identification,” the judges said.

The court directed the government not to give Aadhaar to illegal immigrants.

Justice Chandrachud, in his dissenting judgment, held that Aadhaar is not constitutional and passing the Aadhaar Act as a money bill, thus bypassing the Rajya Sabha, was a “fraud on the Constitution”. He favoured the deletion of consumers’ Aadhaar data by mobile service providers and held as invalid the linking of PAN with Aadhaar.

On linking of PAN with Aadhaar, the Constitution Bench examined the provision 139AA in the light of right to privacy declared as per the Puttaswamy judgment, and held that tests of permissible limits for invasion of privacy — namely, the existence of a law; a “legitimate state interest”; and that such law should pass the “test of proportionality” — were satisfied. Therefore, Aadhaar-PAN linkage is mandatory.

The majority struck down Rule 9 of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005, which insisted that bank accounts should be linked with Aadhaar. It was held that the provision did not meet the test of proportionality and, therefore, violated the right to privacy of an individual, which extends to banking details.