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Published On: Wed, Sep 26th, 2018

Supreme Court uphold the constitutional validity of Aadhaar scheme,

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adhar-26NEW DELHI : While upholding the constitutional validity of Aadhaar scheme, the Supreme Court has ruled that Aadhaar Act doesn’t violate your right to privacy when you agree to share biometric data.
Private entities have been barred from using Aadhaar card for KYC authentication purposes but you will still need Aadhaar for various other purposes including PAN card and ITR filing.  The government has welcomed the Supreme Court ruling with finance minister Arun Jaitley saying that the use of Aadhaar has helped the government save Rs 90,000 crore in a year through targeting of beneficiaries and plugging leakages.

In a 4:1 verdict, the Supreme Court has declared the Centre’s flagship Aadhaar scheme as constitutionally valid, but with conditions. The majority verdict of the five-judge Constitution Bench has ruled that there is no need to link Aadhaar with bank accounts and mobile phones, but held that Aadhaar could be passed as a money bill.
The five-judge Constitution Bench has struck down the Section 57 of the Aadhaar Act that allows private entities to use Aadhaar for verification purpose. Corporate body or any private person cannot seek Aadhaar from applicants, Justice Sikri’s judgment states. Section 33(2) that allows UIDAI to share data with specially authorised officers in the interest of national security, has also been struck down.

The court further says that schools cannot insist on Aadhaar and read down Section 57 of the Aadhaar Act, barring sharing of information with corporate bodies. In a dissenting judgment, Justice DY Chandrachud says Aadhaar “in its entirety is unconstitutional” and that it couldn’t have been passed as Money Bill.
A Constitution Bench of the Supreme Court, led by Chief Justice of India Dipak Misra has upheld the validity of Aadhaar but with riders. It has struck down Section 57 that allows private entities to seek Aadhaar data, but has allowed the unique number to be used for government schemes and subsidies.

The five-judge Bench, also comprised Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan. Among them Justice Chandrachud dissented and declared Aadhaar was not valid.Justice Ashok Bhushan reads his judgment. He says he concurs with the majority judgment but differs on three counts. In the name of Aadhaar, rightful beneficiaries should not be denied services, subsidies, or benefits, Justice Bhushan says. He states the Lok Sabha Speaker’s decision to pass a Bill as Money Bill is amenable to judicial review.  He also strikes down Section 57 that allows private entitites to use Aadhaar.
Justice Bhushan says no material was placed before the Supreme Court to indicate that there has been considerable denial of benefits of subsidies to deserving persons. He also says  that biometric data contains certain personal information of citizens and the breach, if any, has to be ascertained. Justice Chandrachud also says Section 7 is unconstitutional. Section 7 makes Aadhaar mandatory for getting state subsidies. “Mandating Aadhaar for benefits and services under Section 7 would lead to a situation in which citizens will not be able to live without Aadhaar,” he observes.

Justice Chandrachud also raps Central government for insisting on Aadhaar for several schemes despite the Supreme Court repeatedly saying it is not mandatory in various rulings. The apex court said Aadhaar is meant to help benefits reach the marginalised sections of the society and takes into account the dignity of people not only from personal but also from community point of view. The top court said Aadhaar is serving much bigger public interest and Aadhaar means unique and it is better to be unique than being best. There are three sets of judgments being pronounced on the issue.

The judgement removes a big barrier to the Centre’s flagship scheme’s acceptability and “settles” the law, T V Mohandas Pai, a former Chief Financial Officer (CFO) of Infosys Ltd said. “Overall, a very good balanced judgement which recognises Aadhaar as a unique entity, empowers the government to make Aadhaar mandatory with conditions in certain cases and recognises the primacy of the individual’s right to her data,” he told PTI.
Besides the government, leading figures in the information technology (IT) industry hailed the apex court’s verdict on Aadhaar. “The Supreme Court verdict in the Aadhaar case is balanced as it has upheld the constitutional validity of the scheme while also addressing data privacy issues,” leading figures in the IT industry said.
Describing the Supreme Court judgement on Aadhaar as “historic”, Finance Minister Arun Jaitley Wednesday said it has helped the government in saving Rs 90,000 crore every year with targeted delivery of government schemes.   Holding that it’s unconstitutional is ask for mandatory linking of mobile phone numbers with Aadhaar, Justice Chandrachud orders service providers to delete any information collected by them after linking Aadhaar with SIMs. He also notes that mobile phones are a storehouse of information about lifestyle, preferences. “Aadhaar negates pluralistic identities and redues a person to just 12 digits,” he says.
Noting that Section 57 would lead to profiling and even allow State to tap into the decision making process of the electorate, Justice Chandrachud asks the government to bring a data protection regime first. Justice Chandrachud says individuals cannot be asked to wait upon the vicissitudes of algorithms. He says authentication data can only be retained for six months.

Justice  Chandrachud also warns leakage from central database will pave way for surveillance. There was no legal or statutory backing for collection of personal data by pvt entities prior to Aadhaar Act, he observes. He also differs with the majority judgment on Aadhaar giving dignity of marginalised. “One right cannot take away another. Dignity to the marginalised cannot do away with right of a person to bodily autonomy,” he says.
Justice Chandrachud says UIDAI has no accountability/responsibility for storage or leakage of data.
Picking holes on Aadhaar law, Justice says the law provided no grievance redressal mechanism, regulators or independent monitoring authority. while, Justice Sikri’s judgment rules out the scare that Aadhaar could lead to surveillance state. “Only minimum biometrics of iris and fingerprints are sought. The information is collected in silos. There is no merging of silos. Authentication is not on the Internet, nature of transaction is not shared and registered devices are used.”
Justice Sikri’s judgment has upheld Aadhaar-PAN linkage. However, seeding Aadhaar with mobile phone numbers and bank accounts are no longer needed. However, a person may choose to give his/her Aadhaar card as an identity proof. Aadhaar fails only 0.232%. But dismantling Aadhaar now would mean disturbing 99% of the population enrolled. It is like throwing the baby out with the bath water, Justice Sikri remarks.
Meanwhile, The Top Court once pulled up the State of West Bengal for directly approaching the apex court against the Centre’s move to make Aadhaar mandatory for availing the benefits of various social welfare schemes. “How can the State of West Bengal come here directly? Let Mamata Banerjee come and file a petition as a citizen,” a Bench of A.K. Sikri and Ashok Bhushan said.
Justice KS Puttaswamy approached the Supreme Court in 2013 claiming that Aadhaar violates one’s right to privacy. It is this petition that eventually led to the setting up of a Constituition Bench to decide if privacy was indeed a fundamental right. Nagrik Chetna Manch, an NGO, challenged Election Commission’s decision to link electoral rolls with Aadhaar for verification purpose.(With Agency Inputs ).

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