The 5 judge bench comprising CJI Dipak Misra, Justices D.Y. Chandrachud, A.K. Sikri, Ashok Bhushan and A.M. Khanwilkar heard  Aadhaar Act challenge for 38 days - the second longest hearing in history of Indian Supreme Court. The court reserved  judgment on 10th May. Here we look at the pre-decision matrix to anticipate some possible outcomes in the case.

 

                                                             

                                                                                                       Pre-Decision Matrix

 

No

Possible Outcomes

Reasonings

1

Act  is constitutional

Aadhaar Database has 99% of citizens in it. It seems difficult to invalidate an Act which has achieved near universal enrollment. The court is more likely to: issue guidelines to ensure fundamental rights are not infringed; strike down specific provisions of the Act without invalidating the entire Act.

 

2

Whole Act is unconstitutional

The Act can be declared unconstitutional on two grounds: a)lack of legislative competence b)substantive violations of fundamental rights.

 

Lack of Legislative Competence – The court can declare that the Act was improperly passed as a Money Bill. Specific provisions of the Act cannot be saved as doctrine of Severability does not apply to an invalidly passed legislation.

 

Substantive Violation of Fundamental Rights – Section 7 of the Act makes Aadhaar mandatory to avail fundamental state entitlements - this exludes a large section of citizenry. The Aadhaar architecture enables the state with the power of surveillance - it violates right to privacy and dignity under Article 21.

 

3

Act constitutional. Section 7 is made mandatory while Aadhaar for non-essential services is optional.

 

On 13th March, the SC gave interim order making Aadhaar linking for the subsidies and benefits compulsory under section 7 of the Act. However it extended the deadline for linking the non-essential services like bank accounts, mobile SIMS till the judgment comes out.

 

The essence of the interim order could be a precursor to the judgment.

 

 

4

Act constitutional. Section 7 is made optional while Aadhaar for non-essential services is made mandatory

The court can reason that making Aadhaar mandatory for basic subsidies, entitlements would lead to large scale exclsuion of poor, marginalised and vulnerable class. Hence Aadhaar cannot be made mandatory for benefits and subsidies under Section 7 of the Act. The reported deaths of 18 people due to making Aadhaar mandatory or glitches in Aadhaar seeding could influence this outcome.

 

Aadhaarcould be made mandatory for non-essential services as it doesn't violate the fundamental rights of citizens under Article 14 and 21.

 

5

Aadhaar Act constitutional but individual sections struck down.

The court can apply the doctrine of severability to save the Act but strike down individual sections which viloate the Constitution.

 

There are two sections which could be struck down:

i) Section 57 –This section allows Aadhaar to be made mandatory for any purpose (beyond Section 7) by anyone (including private actors). The court might find that Section 57 goes beyond the core ambit of Aadhaar Act by allowing private parties to make Aadhaar mandatory beyond Section 7 services.

 

ii) Section 59 says that anything done or action taken by the Central Government before the passing of the Act on 12th September 2016 shall be deemed to be validly done under the Act. This provision can be struck down as it gives retrospective validity to all actions which were done before Aadhaar was passed by the Parliament.  The court can rule that there can be no retrospective validity for all actions which directly impinge on fundamental rights of citizens.

 

 

6

Aadhaar Act constitutional but “informed consent” and “opt-out” provisions read in

The Supreme Court can uphold the Aadhaar Act but it can make it optional for citizens by reading in  “informed consent” and “opt-out” provision for users.

 

Informed Consent would mean two things – first, the biometric data can be collected only after informing the citizens and the data once collected could not be used for any other purpose.

 

Opt-Out provisions would mean that the informed consent is not perpetual. The citizens can revoke their consent by making use of the opt-out provision.