On 26th September 2018, the Court upheld the constitutional validity of the Aadhaar Act, while striking down certain provisions as unconstitutional. The Bench produced three separate opinions. The majority opinion was written by Justice Sikri on behalf of Chief Justice Misra, Justice Khanwilkar and himself. Justice Bhushan wrote a concurring opinion. Justice Chandrachudwrote a dissenting opinion.
Sikri J's Majority Opinion
On behalf of Chief Justice, Khanwilkar J and himself
Justice AK Sikri writing for CJI Dipak Misra and AM Khanwilkar delivered the majority judgment in the Aadhaar Case. The majority upheld the constitutionality of Aadhaar, but it struck/read down certain provisions of the Aadhaar Act and the UIDAI Regulations. Crucially, the majority opinion did not strike down Section 7, which makes Aadhaar mandatory for availing State subsidies, benefits and challenge.
On Privacy: Aadhaar does not create a Surveillance State
Justice Sikri first addressed the petitioners’ concern that wide collection of biometrics and demographic data will lead to profiling of individuals and create a surveillance state, thus violating the fundamental right of privacy.
Justice Sikri concluded that minimal possible data – demographic and biometric is obtained from Aadhaar holders and that there are enough safeguards, including facility of encryption and not storing it beyond time period required AK Sikri holds that the architecture of Aadhaar as well as provisions of the Aadhaar Act do not tend to create a surveillance State.
He relied heavily on Dr. Ajay Bhushan’s power-point presentation to emphasize the following points:
He dismissed the charge that Aadhaar would turn India into a surveillance State.
Aadhar is a Unique and Empowering Identification Document
He said that Aadhaar is unique and more fool proof than other identification documents (PAN, Ration Card). This is because Aadhaar Card is issued on basis of an individual’s biometric information, he submitted. While other cards can be duplicated, Aadhaar Card as an Identification document is unique and cannot be duplicated. He observed that the Aadhaar Card is rightly labeled “Unique Identification”.
Besides being unparalleled as an identification document, he termed it as “empowering” tool as it facilitates disbursal of state subsidies and benefits to the marginalized and disadvantaged sections of society.
On Aadhaar & the Right to Dignity : Aadhaar does not violate the dignity of an individual
Justice Sikri addressed the main plank of challenge by petitioners that Aadhaar project and Aadhaar Act infringes right to privacy, specifically the right to live with dignity. He cited Puttaswamyjudgment to clarify that right to dignity resides in Article 14 (right to equality), Article 19 (bouquet of freedoms) as well as Article 21 (right to life). He clarified that the standard of review to test privacy infringement by a law is “just, fair and reasonableness” standard (three-foldPuttaswamytest) and not “strict scrutiny test”.
The three-fold Puttaswamytest states that an invasion of privacy must meet the following:
On conception of dignity, he said that there are two facets of dignity: individual dignitypredicated on freedom of choice and autonomy and community approach to dignity, which accounts for “common good” and “public good”.
He said that Aadhaar helps the disadvantaged sections lead a dignified life by assuring better targeting of subsidies and state benefits and helps in effective realization of a range of socio-economic rights. He said that there is a need for balance between two conceptions of dignity – one based on right of personal autonomy and other based on right to live a dignified life. While upholding the Aadhaar Act, he did strike down certain provisions.
On Striking /Reading Down Specific Provisions
While upholding the Aadhaar Act, he struck down and read down certain provisions.
Upheld - The court held that Aadhaar-PAN linking is valid as it satisfies the three-fold PuttaswamyTest – of there being a law, law having legitimate state interest and the law meeting the ‘test of proportionality’.
However, it struck down Bank and SIM linking with Aadhaar as neither of these have a legislative backing nor do compulsory linking meet the proportionality test.
The court held that a parents’ consent is essential for enrolling a child into Aadhaar scheme. The child upon attaining majority can choose to opt-out of Aadhaar project.
Justice Sikri upheld Section 7 which made Aadhaar mandatory for availing State subsidies, benefits and services.
But, he held that Aadhaar couldn’t be made mandatory by CBSE, NEET, UGC as they are neither services nor benefits by the State. Similarly, Aadhaar couldn’t be made mandatory for children under Sarva Siksha Scheme, as elementary education is not a state benefit but an entitlement.
Bhushan J’s Concurring Opinion
Justice Ashok Bhushan wrote a concurring judgment. He concurred with Justice Sikri’s majority opinion in so far as he upheld the constitutionality of the Act. He differed on the constitutional validity of specific provision within the Act. Justice Bhushan took a more conservative stance. Unlike Sikri, he upheld Sections 33, 47 and Rule 9 of the PLMA.
Aadhaar As a Money Bill
Justice Bhushan found that Parliament was competent to pass the Aadhaar Act as a Money Bill under Article 110 of the Constitution. The main aim of the act is to deliver State subsidies and benefits, the expenditure of which falls under the Consolidated Fund of India. Article 110(1)(c) states that a Bill is a Money Bill if it ‘contains only provisions dealing with…the custody of the Consolidated Fund of India’. Just Bhushan, with reference to Article 110(3), concluded that the Act can justifiably be passed as a Money Bill. Nevertheless, Justice Bhushan affirms that the matter is subject to future judicial review.
On The Question of Privacy
On the question of whether the Aadhaar Act violates the fundamental right to privacy, Justice Bhushan responded in the negative. He wrote that that the manner in which the Act prescribes the State to collect, store and use data is consistent with the right to privacy. He also stated that the Act in combination with the UIDAI’s Compendium of Regulations provide citizens adequate control over their data. He concluded that the Act does not create an architecture for pervasive State surveillance.
Justice Bhushan emphasized that the Act does not violate the right to privacy as it passes the three-fold test established in Puttaswamy. Puttaswamy established the three-fold test for testing whether any State action violates the fundamental right to privacy. The three criteria to be met are: ‘legality’, ‘need’, and ‘proportionality’. Bhushan found that the Act inherently meets ‘legality’, given that the Act was passed by Parliament. He finds that the Act meets the ‘need’ criteria. For him, the State has a legitimate claim to assigning unique identification numbers to citizens, in order to ensure the efficient enactment of welfare schemes. Finally, Bhushan concluded that the Act meets the ‘proportionality’ criteria. ‘Proportionality’ requires that there exists a ‘rational nexus’ between the aim of a piece of legislation and the means adopted to achieve them. Bhushan stated that the provisions in the Act and the UIDAI’s regulations ensure that the means used are rationally proportional to the end intended, namely enrolment to ensure inclusion in the State.
On Striking/Reading down Specific Provisions
Justice Bhushan struck down and read down certain provisions of the Aadhaar Act, related Acts and the UIDAI Regulations.
Below is a list of Sections that were up for review and how Justice Bhushan ruled on each of them:
Note that Justice Bhushan does not completely strike down Section 57. He allows the legislature to pass laws in the future that allow private companies to request Aadhaar, as long as the law passes the three-fold Puttaswamytest.
Section 139AA of Income Tax Act: Upheld as constitutional. Justice Bhushan ruled that Section 139AA does not violate the right to privacy. As a result, it is mandatory for citizens to link their Aadhaar card to their PAN card.
Chandrachud J’s Dissenting Opinon
“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. The Aadhaar Act, the Rules and Regulations framed under it, and the framework prior to the enactment of the Act are unconstitutional.
Justice D Y Chandrachud delivered the dissenting opinion in the Aadhaar Case. He held the Aadhaar Act to be unconstitutional from the very stage of its enactment owing to the procedure adopted in passing the law. The Aadhaar Act, he observed, could not have been passed as a Money Bill. Additionally, he also dealt with the arguments referring to specific provisions of the Act, particularly in the context of privacy, dignity and individual autonomy.
On Aadhaar as a Money Bill:
The passing of the Aadhaar Act as a money bill is unconstitutional. For an act to be passed as a money bill, it must only contain such provisions that pertain to matters set out under Article 110(1) clauses (a) - (g) of the Constitution. A perusal of the Aadhaar Act will show that it governs several other aspects relating to the Aadhaar scheme, none of which lie within the scope of Article 110(1).
Additionally, Section 7 does not declare expenditure to be incurred by the Consolidated fund of India, but only that the Aadhaar be made mandatory where such expenditure is incurred.
In the given circumstances, the passage of the Aadhaar Act as a money Bill results in the debasement of a constitutional institution i.e. the Rajya Sabha. The existence of the Rajya Sabha in a bicameral legislature forms an essential part of the basic structure of the Constitution.
The decision of the speaker to certify an ordinary bill like as in the case of Aadhaar limits the role of the Rajya Sabha, which is intrinsic to ensuring executive accountability and maintaining the balance of power.
On Legitimate State Interest:
The framers of the Constitution believed that the driving force to bring social change rested with the State. It was keeping in mind this purpose that the Directive Principles f State Policy were incorporated into the Constitution. The State therefore has a legitimate aim to ensure that its citizens receive basic human facilities and reaching out to targeted populations is a valid constitutional purpose.
When designing a unique measure of identification, the State must ensure both financial exclusion and protection against financial exclusion. The Aadhaar scheme seeks to bring about financial inclusion by providing a means of identification to every segment of the population including those who may not have been within the coverage of traditional markers of identity. Mandate of Section 7 is founded on Legitimate State Interest.
On the question of privacy, dignity & violation of fundamental rights:
Biometric data in unique and distinguishable from other personal information as the former is intimately connected to the individual concerned. This makes concerns about biometric technology particularly significant in the context of privacy and data protection.
The 9 Judge Bench in Puttaswamyheld that informational privacy is an essential aspect of the fundamental right to privacy. The ability to control information about oneself is intrinsically linked to the dignity, self-respect and sense of personhood of an individual. Informational privacy is a right protected against excess by both state and non-state actors and access to personal data of an individual must be governed by a legal regime built around the principles of consent, transparency, and individual control.
Any restriction on privacy must be subjected to the three-fold test of legality, legitimate state aim, and proportionality, in addition to meeting the requirements of constitutionally permissible restrictions under Part 3 of the Constitution. Once a biometric system is compromised, it is compromised forever.
Therefore, it is imperative that concerns about protecting privacy must be addressed while developing a biometric system and individuals must be given the right to access, correct and delete their data at any point in time, a procedure familiar to an opt-out option.
The Aadhaar Act and the regulations framed thereunder are silent on the question of informed consent and do not provide for procedure through which individual can access their information. In this regard, the proviso to Section 28(5) which bars the individual from accessing their own data is invalid as it violates the fundamental principle of ownership of personal data
The “Do No Harm” Principle, which requires that Governments or adjacent authorities do not use biometric and digital identity in such a manner that results in causing harm to the individual concerned, requires rigorous evaluation and continuous oversight.
Creating a strong legal regime for privacy protection and safeguards akin to those provided for under the EUGDPR may assuage the fears of the public and uphold the long-term legitimacy of the Aadhaar. However, in its current form, the Aadhaar framework does not address the privacy concerns and is violative of informational privacy.
The State is under a constitutional obligation to safeguard the dignity of its citizens and the failure of the Aadhaar Act to account for the flaws in the framework and the resultant failures in authentication have led to denial of benefits and exclusion of individuals.
The dignity of an individual cannot be made dependent on algorithms and technological vulnerabilities. Denial of benefits arising out of any social security scheme which promotes socio-economic rights of the marginalized, would not be legitimate under the Constitution Exclusion based on technological errors, with no fault of the individual, is a violation of dignity.
On Striking/Reading Down Specific Provisions
Section 29(4) of the Act suffers from overbreadth as it gives wide discretionary power to UIDAI to publish, display or post core biometric information of an individual for purposes specified by the regulations.
Similarly, Section 2 (g), (j), (k) and (t)empower the UIDAI to define the scope of biometric data and further expand the nature of information that may be collected, giving the UIDAI disproportionately wide powers. The definitions of these sections provide the government with unbridled powers to add to the list of biometric details that UIDAI can require a citizen to part with during enrolment which might even amount to an invasive collection of biological attributes including blood and urine samples of individuals.
The proviso to Section 28(5) of the Aadhaar Act, which disallows an individual access to the biometric information that forms the core of his or her unique ID, is violative of a fundamental principle that ownership of an individual’s data must at all times vest with the individual.
Section 47 is arbitrary as it fails to provide a mechanism to individuals to seek efficacious remedies for violation of their right to privacy.
Section 57 is manifestly arbitrary, it suffers from overbreadth and violates Article 14. It cannot be allowed to pass the test of Constitutional muster.
Section 7 suffers from overbreadth since the broad definitions of the expressions ‘services and ‘benefits’ enable the government to regulate almost every facet of its engagement with citizens under the Aadhaar platform.
The 2017 amendments to the PMLA Rules fail to satisfy the test of proportionality. The presumption is that that any person desirous of opening a bank account is a potential money launderer. Moreover, the consequences of the failure to provide Aadhaar details are draconian and the restriction placed excessive and disproportionate.
The Court in Binoy Viswam held that the purpose of making Aadhaar Number with PAN Card mandatory under the Income Tax Act was to curb black money, money laundering and tax evasion. Section 139AA is premised on the assumption that the Aadhaar Scheme has been implemented under a valid legislation. The validity of seeding Aadhaar with PAN must therefore depend on the constitutional validity of the Aadhaar Act itself. (As per dissent. invalid)
Mobile phones in the current day and age are storehouses of personal data and the question that arises is whether Aadhaar is the least intrusive way in which in which the problems associated with subscriber verification may be dealt with.
In the absence of adequate safeguards, biometric data of users can be seriously compromised and exploited for commercial gains and the State must not be oblivious to such privacy concerns.The decision to link Aadhaar numbers with mobile SIM cards is not valid or constitutional as it fails the test of proportionality as laid down by the 9 Judge Bench inPuttaswamy. It fails the test of constitutional muster on account of enabling a disproportionate intrusion into the realm of individual privacy.
All Telecom Service Providers directed to delete the biometric data and Aadhaar details of all subscribers within 2 weeks.
(Written by Satya Prasoon, Disha Chaudhry, Jai Brunner)