One India, One Identity; Where Only Numbers Are Unique

The Supreme Court upheld the Constitutionality of the Aadhaar Act in its much awaited verdict in the Aadhaar hearings yesterday. Justice AK Sikri delivered the majority Judgement authored by him and concurred with by the Chief Justice Dipak Misra and Justice AM Khanwilkar. Justice Ashok Bhushan delivered a separate concurring Judgement with minor differences. The sole dissenting Judgement was delivered by Justice DY Chandrachud who explicitly expressed that the entire Act must be struck down. Interestingly, among the five Judges who delivered their Judgement today, only Justice Chandrachud was involved in hearing to determine whether the right to privacy is a fundamental right.

Also See: Will the Aadhaar Judgment Become Another ADM Jabalpur?

The Right to Privacy

The majority decision chose to view the right to privacy from the perspective of dignity under Article 21. In this regard, it was held that since Aadhaar ensures delivery of services and subsidies, it upholds the dignity of the poor. The majority also observed that the information collected at the time of enrolment and authentication is minimal. Justice Chandrachud, however, disagreed. His approach to the question of privacy was from the perspective of informational privacy. He stated, “One right cannot be taken away at the behest of the other. The State has failed to satisfy this Court that the targeted delivery of subsidies which animate the right to life entails a necessary sacrifice of the right to individual autonomy, data protection and dignity when both these rights are protected by the Constitution”.

On the aspect of exclusion due to authentication failures, the majority observed that the success rate was of 99.76 per cent, hence the remedy would be to adopt alternate means of identification in such cases. Justice Chandrachud, however, placed greater weightage on the probabilistic nature of biometric authentication, meaning that it can fail. In this regard, he stated that the “[d]ignity and the rights of individuals cannot be made to depend on algorithms or probabilities. Constitutional guarantees cannot be subject to the vicissitudes of technology”.

As far as section 7 of the Aadhaar Act – which enables Aadhaar authentication for benefits and subsidies – was concerned, it was held that the scope of the section should not be unduly expanded. Justice Chandrachud, however, held that both section 7 as well as 57 of the Act suffer from overbreadth. Meaning that these provisions have been framed so vaguely that almost anything can be brought within their scope. On section 7 specifically, Justice Chandrachud stated: “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 inclusion of services and benefits in Section 7 is a pre-cursor to the kind of function creep which is inconsistent with the right to informational self-determination. Section 7 is therefore arbitrary and violative of Article 14 in relation to the inclusion of services and benefits as defined.”

Interestingly, it was only Justice Chandrachud who recognised the privacy risk posed by Aadhaar’s architecture. He stated, “When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos, which allows anyone with access to this information to re-construct a profile of an individual’s life. This is contrary to the right to privacy and poses severe threats due to potential surveillance.”

Also See: Some Parts of Aadhaar Judgement Have Deeply Disappointed: Activists

Regarding Making Aadhaar Mandatory for Children

The majority decision on this issue was of the opinion that the consent of the parent or guardian of the child would have to provide consent, and that the child should have the option of opting out at the age of majority (18 years). Aadhaar cannot be made mandatory for school admission, as under Article 21A, the right to education is a fundamental right. Similarly, Aadhaar cannot be made mandatory for any benefits under Sarva Shiksha Abhiyan.

The Money Bill Issue

The majority decision read down section 57 of the Aadhaar Act which allows even private entities to request Aadhaar as a proof of identity. In this regard, the portion that allowed private entities access to Aadhaar details was struck off. While, at the same time, the majority decision upheld section 7 of the Act. In this framework, the Act’s passage as a money Bill was deemed valid since the part enabling the corporates access to Aadhaar information was struck off, and that the crux of the Act was deemed to lie in section 7.

Justice Chandrachud differed on this account as well. He stated, “When a Bill which has

been passed as a Money Bill has certain provisions which fall beyond the scope of sub-clauses (a) to (g) of Article 110(1), these provisions cannot be severed. If the bill was not a Money Bill, the role of the Rajya Sabha in its legislative passage could not have been denuded. The debasement of a constitutional institution cannot be countenanced by the Court. Democracy survives when constitutional institutions are vibrant.”

This implies that even if the portion regarding the corporate sector is removed from section 57, it does not change the fact that the Act did not have the features of a Money Bill when it was passed.

Also See: Aadhaar Judgement - SC Upholds Act, Key Sections Struck Down

Aadhaar Linking

The majority decision held that linking Aadhaar with Permanent Account Numbers (PAN) under section 139AA of the Income Tax Act does not violate the right to privacy. Justice Chandrachud, however, was of the opinion that this provision of the Income Tax Act was made on the presumption that the Aadhaar Act was constitutional. Since the Justice Chandrachud did not find the Act to be constitutional, this provision too was held not to be so.

The entire Bench agreed that linking Aadhaar with bank accounts and mobile numbers was unconstitutional. On bank accounts, the majority premised it on the ground that non-compliance would result in the account being sealed, and hence would amount to a deprivation of property. Justice Chandrachud however, held that the provision making such a linkage presumes that “all existing account holders as well as every individual who seeks to open a bank account in future is a potential money launderer.”

On the issue of mobile phone linkage, the majority found that it was not backed by any law, and hence quashed the Department of Telecommunications’ Order of March 23, 2017. Justice Chandrachud, however, felt that such a link was disproportionate and unconstitutional, and advocated that all the information already stored should be deleted.

The objections to the Aadhaar project began well before a law mandating and regulating Aadhaar was passed. The first petition was filed by retired Justice KS Puttuswamy in 2012. Subsequently, as many as 31 additional matters have been connected with the first petition.

One of the major attacks launched by the petitioners was that Aadhaar violated citizens’ privacy. However, the counter-argument was that a right to privacy was not mentioned as a fundamental right under Part III of the Constitution. The matter went up for a separate hearing, after which on August 24, 2017, the Supreme Court held that the right to privacy is a fundamental right under Article 21 of the Constitution.

The majority decision of the Court after removing the difficulties in the Act has upheld the same as constitutional. However, Justice Chandrachud, in his concluding paragraph, stated:

“[I]n its current form, the Aadhaar framework does not sufficiently assuage the concerns that have arisen from the operation of the project which have been discussed in this judgement.” This essentially implies that in his opinion the entire project falls foul of the Constitution.