New Delhi: In his dissenting verdict, Justice D.Y. Chandrachud held the Aadhaar law as unconstitutional as data and information collected for issue of Aadhaar identity card infringes on right to privacy of an individual. Further, the Aadhaar law introduced in Parliament as a “money bill” is a fraud on the Constitution.
He said the Aadhaar project suffers from crucial design flaws which impact upon its structural probity. Structural design in delivering welfare entitlements must be compliant with structural due process, to be in accord with Articles 14 and 21. The Aadhaar project has failed to account for and remedy the flaws in its framework and design, which lead to serious issues of exclusion.
He said the decision of Speaker to classify a bill as a money bill is amenable to judicial review. “If a Constitution has to survive political aggrandisement, notions of power and authority must give compliance to rule of law.”
He said a decision of the Speaker of the Lok Sabha to declare an ordinary bill to be a money bill limits the role of the Rajya Sabha. The power of the Speaker cannot be exercised arbitrarily in violation of constitutional norms and values, as it damages the essence of federal bicameralism, which is a part of the basic structure of the Constitution. If the bill was not a money bill, the role of the Rajya Sabha in its legislative passage could not have been denuded. The court cannot countenance the debasement of a constitutional institution. Democracy survives when constitutional institutions are vibrant.
“Constitutional guarantees cannot be compromised by vicissitudes of technology,” he observed. Section 57 of the Act was held to be violating Articles 14 and 21 of the Constitution. Allowing private enterprise to use Aadhaar numbers will lead to exploitation of data.
Holding that Aadhaar had potential for surveillance, Justice Chandrachud stated that the architecture posed risk on potential violation of leakage of database. Source code is of foreign corporation. “The data must all the time vest with the individual,” said the judgment.
Justice Chandrachud held that entire Aadhar project which commenced from 2009 suffered from constitutional invalidity. The government repeatedly violated the interim orders of the Supreme Court, which had prohibited making Aadhar mandatory for availing benefits.
Based on the premise of unconstitutionality of Aadhar, Section 139AA of the Income-Tax Act which mandated linking of PAN with Aaadhar, he struck down the provision. He said the Dignity and rights of individuals couldn’t be based on algorithms or probabilities.
Once a biometric system is compromised, it is compromised forever. Therefore, it is imperative that concerns about protecting privacy must be addressed while developing a biometric system. Adequate norms must be laid down for each step from the collection to retention of biometric data.
He pointed out that at the time of collection of data, individuals must be informed about the collection procedure, the intended purpose of the collection, the reason why the particular data set is requested and who will have access to their data. Additionally, the retention period must be justified and individuals must be given the right to access, correct and delete their data at any point in time, a procedure familiar to an opt-out option.
The Judge said prior to the enactment of the Aadhaar Act, no mandatory obligation was imposed upon the Registrars or the enrolling agencies, to obtain informed consent from residents before recording their biometric data, to inform them how the biometric data would be stored and used and about the existence of adequate safeguards to secure the data.
Moreover, prior to the enactment of the Act, while UIDAI had itself contemplated that an
