For a record 38 days, a five-judge Supreme Court (SC) bench heard 31 petitions that had challenged the constitutional validity of the Centre’s Aadhaar programme and the 2016 law that enables the scheme and called it a violation of the right to privacy. On Wednesday, September 26, the SC in a 4:1 majority judgement ruled that the government’s ambitious public scheme which uses biometric data to generate unique identification numbers for citizens – known as the Aadhaar project – and the Aadhaar Act are constitutionally valid, but with conditions. While upholding the constitutional validity of Aadhaar as pro-poor and inclusionary, the court scrapped certain provisions of the Aadhaar Act that were seen as enabling surveillance by the state.
On the issue of right to privacy in response to petitions raising concerns over violation of privacy and individual liberty, the SC ruled that Aadhaar does not infringe on an individual’s right to privacy and opined that the right to dignity is part of the right to privacy. Holding Aadhaar as a tool which empowers the marginalised sections of the society and gives them identity, the court ruled in favour of human dignity and larger public interest by stating that ‘proportionality is to be adjudged on the basis of the norms such as expectations of privacy, compelling state interest and larger public good’. Thus in the court’s opinion, the invasion into an individual’s privacy is outweighed by the benefits meant for the enhancement of the common dignity of a society.
The petitioners had also challenged the passage of the Aadhaar Act as a money bill but the majority judgement also held it valid. Another issue raised by petitioners revolved around welfare exclusion concerns; the majority ruling seems to have dismissed this concern as well on the ground that throwing out the whole (Aadhaar) Act on the basis of welfare exclusion concerns would be ‘throwing the baby with the bathwater’. By choosing to see the Aadhaar Act as a ‘beneficial legislation’, the court has prioritised the collective goal of the Aadhaar project over individual rights.
Clearly, the court appears to have walked the middle path: it has saved the Aadhaar project and the Aadhaar Act by declaring them constitutional, but the court has placed restrictions on scope of the project while striking down several contentious provisions of the Aadhaar Act, including clauses that allowed storage and sharing of data for national security purposes and the usage of the biometric authentication system by private bodies like banks, telecom operators and educational institutions. The government, though, is free to intervene by bringing about a law to mandate Aadhaar for obtaining a service wherever it sees a possibility and the government has also indicated its willingness to do so.
However, there is still confusion about whether Aadhaar is voluntary or mandatory. The judgment clearly says that Aadhaar is voluntary. But the court has made Aadhaar-PAN card linking mandatory. A person also needs Aadhaar when applying for PAN card and for filing Income Tax returns, which is an indirect link to bank accounts where PAN card number is mandatory. Therefore, it becomes mandatory for you to obtain an Aadhaar card, whether for the purpose of seeking entitlement benefits, filing IT returns or applying for a PAN card.
The SC verdict on the constitutional validity of Aadhaar is a major embarrassment for the BJP-led NDA government because of the way the government was defending it on all fronts and making it mandatory for a host of public and private services, despite huge concerns over safety of personal data of over a billion people in absence of stringent data protection laws. With section 57 of the Aadhaar Act having been knocked down by the court, the verdict comes as a setback for the government and a big relief for common people who were being pressurised by private services to share their Aadhaar number. The court has also asked the government to introduce a strong data protection law that will ensure the safety of the personal data of individuals.
On the other hand, it’s not entirely wrong on the part of the Congress or UPA to claim victory because it’s their version of Aadhaar that has got thumbs up from the SC. And right so, if one goes back in time to 2009 when the government saw immense potential in the use of technology to identify and disburse its subsidies to individuals. That’s how the Aadhaar project was devised, whereby biometric information of individuals was to be used for the purpose of identification and verified disbursement.
However, what started as a unique identification programme aimed at curbing leakage in India’s welfare system came under public scrutiny when it morphed into a sprawling ecosystem which was seen to violate individual privacy and liberty. The unrelenting push for Aadhaar was eventually challenged before the SC in 2012. Since then, it’s been a long legal battle between the government and petitioners against the Aadhaar project as a whole and against the Aadhaar Act. The SC verdict seems to have settled the Aadhaar issue for now, though for many, the verdict is disappointing. But the long-standing debate is still not over, more so because of Justice D Y Chandrachud’s dissenting opinion, which leaves the judgement open to judicial revisit.
In his dissenting view, Justice Chandrachud has disagreed on a number of crucial issues. On the central issue of whether the Aadhaar programme violated the fundamental right to privacy, Justice Chandrachud noted that Aadhaar is ‘completely violative of privacy and the right to self-determination’. In sharp contrast to the majority opinion, Justice Chandrachud observed that ‘the architecture of Aadhaar possesses the risk of bringing about a surveillance state’. He also held that the passage of the ‘Aadhaar Act as a money bill was a fraud on the Constitution’. In contrast to the majority opinion which held that profiling is not possible because Aadhaar uses limited data, Justice Chandrachud noted that ‘information collected under the Aadhaar programme can be used for commercial profiling and also for the purpose of swaying elections’.
Indeed Justice Chandrachud’s dissent was an emphatic one from the majority. Though a dissenting judgment has no force of law, it however, does leave the possibility of review by a larger bench at a later stage.
A L I Chougule is an independent senior journalist.
