The Supreme Court of India on September 26 upheld the constitutional validity of the Aadhaar Act, 2016, along with certain riders. The five-judge constitution bench comprising Chief Justice of India (CJI) Dipak Misra, Justice AK Sikri, Justice AM Khanwilkar, Justice Ashok Bhushan, and Justice DY Chandrachud, passed the verdict in favour of the Union of India in a 4-1 majority judgement.
Reading the majority judgement on behalf of the CJI, Justice Khanwilkar, and himself, Justice Sikri noted that the Aadhaar programme aims at the inclusion of the marginalised segment in the country.
“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,” asserted Justice Sikri.
While CJI, Justice Sikri, Justice Khanwilkar, and Justice Bhushan ruled in favour of legal standing of the Aadhaar Act, Justice Chandrachud was the lone dissenting judge. In a fiery dissenting judgement, Justice Chandrachud declared Aadhaar Act unconstitutional as it was passed as a Money Bill, bypassing the constitutional provisions.
“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,” ruled Justice Chandrachud.
Here’s what the majority and minority judgement read about key questions raised by the petitioners who were represented by a battery of lawyers such as P Chidambaram, Prashant Bhushan, Arvind Datar, Sanjay Hegde, and Anand Grover, to name a few.
One of the major contentions of the petitioners in the case, which went on for record 38-day hearing earlier this year, was the constitutional validity of the Act as it was passed as a Money Bill in the Lok Sabha. According to the petitioners, Aadhaar Bill didn’t meet the criteria specified under Article 110, which defines what can and what cannot be a Money Bill.
Majority judgement: The majority judgement noted that the analysis of the arguments and facts presented by the government convinced the court that the Bill was rightly passed as Money Bill, and hence the Act is constitutionally valid.
“On examining of the other provisions pointed out by the petitioners in an attempt to take it out of the purview of Money Bill, we are of the view that those provisions are incidental innature which have been made in the proper working of the Act. In any case, a part of Section 57 has already been declared unconstitutional. We, thus, hold that the Aadhaar Act is validly passed as a ‘Money Bill’,” ruled Justice Sikri.
Agreeing with observations made by Justice Sikri, Justice Bhushan said, “Aadhaar Act has been rightly passed as Money Bill. The decision of Speaker certifying the Aadhaar Bill, 2016 as Money Bill is not immuned from Judicial Review.”
Dissenting Judgement: However, Justice Chandrachud dissented and asserted that the bill didn’t satisfy the constitutional clauses to be passed as a Money Bill. He declared the Act as illegal and unconstitutional.
“Clause (e) of Article 110(1) requires that a Money Bill must deal with the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India (or increasing the amount of the expenditure). Section 7 fails to fulfil this requirement. Even if it is held that Section 7 bears a nexus to the expenditure incurred from the Consolidated Fund of India, the other provisions of the Act fail to fall within the domain of Article 110(1). Thus, the Aadhaar Act is declared unconstitutional for failing to meet the necessary requirements to have been certified as a Money Bill under Article 110(1),” noted Justice Chandrachud.
Over the past two years, there have been increasing concerns over the safety of data that has been provided to the government under its massive Aadhaar project. Several cases of data breach and allegations over weak regulatory mechanisms further emboldened the apprehensions towards the Aadhaar project.
Majority Judgement: The majority judgement noted that the court was convinced with government’s submission that the state is taking adequate measures to safeguard the data on the UIDAI platform.
“The authentication process is not exposed to the Internet world. Security measures, as per the provisions of Section 29(3) read with Section 38(g) as well as Regulation 17(1)(d) of the Authentication Regulations are strictly followed and adhered to. After going through the Aadhaar structure, as demonstrated by the respondents in the powerpoint presentation from the provisions of the Aadhaar Act and the machinery which the Authority has created for data protection, we are of the view that it is very difficult to create profile of a person simply on the basis of biometric and demographic information stored in CIDR,” noted Justice Sikri.
“Aadhaar Act and Regulations provides protection and safety of the data received from individuals,” said Justice Bhushan, lending his weight to the majority opinion.
Dissenting Judgement: Justice Chandrachud was unmoved by government’s powerpoint presentation on data privacy and data protection mechanisms. He recognised the nationwide concerns over the protection of the billions of data on the UIDAI platform and the fears over speculated ‘state surveillance’.
“With the analysis of the measures taken by the Government of India prior to the enactment of the Aadhaar Act as well as a detailed analysis of the provisions under the Aadhaar Act, 2016 and supporting Regulations made under it, this judgment concludes that the Aadhaar programme violates essential norms pertaining to informational privacy, self-determination and data protection,” he said.
Expressing his concerns over the absence of a regulatory mechanism for data protection, he added, “there is no institutional responsibility of the UIDAI to protect the data of citizens.”
The petitioners challenged government’s decision to make Aadhaar mandatory for availing public welfare services. Several media reports and independent research studies have reflected on the limitations of Aadhaar in providing essential public distribution services, subsidies, and pensions. According to the “State of Aadhaar Report 2017-18” prepared by IDinsight, 20 lakh people were denied food distributed through public distribution system (PDS) due to Aadhaar-related glitches.
Majority Judgement: The majority judgment observed that Aadhaar has become a symbol of digital economy and has enabled multiple avenues for the common man. The judges were of the opinion that dismantling Aadhaar now would mean disturbing 99% of the population enrolled.
“Aadhaar fails only 0.2%. But dismantling Aadhaar now would mean disturbing 99% of the population enrolled. It is like throwing the baby out with the bath water,” noted Justice Sikri.
“It is clarified that the Court is not trivialising the problem of exclusion if it is there. However, what we are emphasising is that remedy is to plug the loopholes rather than axe a project, aimed for the welfare of large section of the society,” he clarified.
Further, Justice Bhushan pointed out, “no material was placed before the Supreme Court to indicate that there has been considerable denial of benefits of subsidies to deserving persons.”
However, the judgement ruled that Aadhaar cannot be mandatory for services that do not draw from the Consolidated Fund of India.
“Benefits and services as mentioned in Section 7 would cover only those ‘benefits’ etc. the expenditure thereof has to be drawn from the Consolidated Fund of India. On that basis, CBSE, NEET, JEE, UGC etc. cannot make the requirement of Aadhaar mandatory as they are outside the purview of Section 7 and are not backed by any law,” Justice Sikri noted.
Dissenting Judgement: Justice Chandrachud sharply differed from the majority judgement and asserted that Aadhaar is susceptible to authentication failures, which leads to exclusion of many rightful citizens entitled for benefits under government welfare schemes.
“The Aadhaar project has failed to account for and remedy the flaws in its framework and design which has led to serious instances of exclusion of eligible beneficiaries as demonstrated by the official figures from Government records including the Economic Survey of India 2016-17 and research studies. Constitutional guarantees cannot be subject to the vicissitudes of technology,” he noted.
He further declared Section 7 of the Aadhaar Act, which makes Aadhaar mandatory for welfare schemes and subsidies, as arbitrary and unconstitutional.
“The inclusion of services and benefits in Section 7 is a precursor 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,” he pointed out.
Both the majority and minority judgments struck down Section 57 that allowed private companies to use Aadhaar numbers. The bench also declared the government circulars, asking people to link their Aadhaar number with telecom services and banking services, as unconstitutional.
“Circular dated March 23, 2017 mandating linking of mobile number with Aadhaar is held to be illegal and unconstitutional as it is not backed by any law and is hereby quashed,” ruled the majority judgement.
Majority Judgement: The majority judgement noted that provisions allowing private firms to use crucial data of citizens violate the right to privacy.
“Insofar as Section 57 in the present form is concerned, it is susceptible to misuse. Thus, this part of the provision which enables body corporate and individuals also to seek authentication, that too on the basis of a contract between the individual and such body corporate or person, would impinge upon the right to privacy of such individuals. This part of the section, thus, is declared unconstitutional,” noted Justice Sikri.
Dissenting Judgement: Justice Chandrachud expressed his concerns over misuse of data by private players and declared Section 57 as unconstitutional.
“Allowing private entities to use Aadhaar numbers, under Section 57, will lead to commercial exploitation of the personal data of individuals without consent and could also lead to individual profiling. Profiling could be used to predict the emergence of future choices and preferences of individuals. These preferences could also be used to influence the decision making of the electorate in choosing candidates for electoral offices. This is contrary to privacy protection norms,” he ruled.
With regards to linking Aadhaar with telecom service providers, Justice Chandrachud noted, “The conflation of biometric information with SIM cards poses grave threats to individual privacy, liberty and autonomy. Having due regard to the test of proportionality which has been propounded in Puttaswamy and as elaborated in this judgment, the decision to link Aadhaar numbers with mobile SIM cards is neither valid nor constitutional.”