The apex court ruled that Aadhaar is mandatory for filing income tax returns, but linking it to bank accounts and mobile numbers is not necessary.

SC upholds constitutional validity of Aadhaar Justice Chandrachud lone dissenter
news Aadhaar Wednesday, September 26, 2018 - 12:10

The Supreme Court of India delivered its verdict on a clutch of 27 petitions, which challenged the constitutional validity of Aadhaar — the 12-digit unique identity number with biometric and demographic information, issued by the Unique Identification Authority of India. The apex court ruled that Aadhaar is mandatory for filing income tax returns, but linking it to bank accounts and mobile numbers is not necessary. The Supreme Court ruled in favour of Aadhaar 4-1, with Justice Chandrachud as the lone dissenter.

Justice AK Sikri authored one of the three judgements, and CJI Dipak Misra and Justice AM Khanwilkar concurred with him. Justice Chandrachud and Justice Ashok Bhushan authored individual opinions. Justice Chandrachud was the lone dissenter. While reading out the judgement, Justice Sikri said the Aadhaar Act does not violate a person's Right to Privacy. Stressing that the data collected by Aadhaar is minimal, he said that there is sufficient defence mechanism for Aadhaar. 

It read down Section 33(1) and struck down Sections 33(2) and 57 of the Aadhaar Act. Private companies cannot insist on Aadhaar for authentication. Under Section 33(1) information pursuant to a judicial order by a court not inferior to that of a District Judge can be disclosed, but the hearing will be given only to UIDAI and not the Aadhaar card holder. An individual could not avail of their basic right to be heard. Section 33(2) states that a Joint Secretary, in the interest of national security, can ask for information to be disclosed. This caused much uproar as the term ‘national security’ is vague.

They upheld Section 139AA of the Income Tax Act, which made the quoting of Aadhaar or the Enrolment ID of Aadhaar application form mandatory for the filing of income tax returns and for making an application for the allotment of Permanent Account Number (PAN). However, they said that linking Aadhaar to bank accounts and mobile numbers cannot be made mandatory. In his judgement, Justice Chandrachud said that he disagreed with a substantial portion of Justice Sikri's judgements. 

The court said that authentication records cannot be stored beyond a period of six months. Justice Sikri also said that the Centre must bring in a robust data protection law.

No person will be denied benefits under social welfare schemes because of failure of authentication through Aadhaar, and provisions must be made for identification if Aadhaar authentication fails. Justice Sikri observed that Aadhaar is meant to help government benefits to reach marginalised sections of society. However, Justice Chandrachud disagreed saying it excluded the marginalised and said it violated the informational privacy and data privacy. Justice Sikri observed that Aadhaar is meant to help government benefits to reach marginalised sections of society.

While reading out the arguments by the respondents, Justice AK Sikri said that it is better to be unique than the best. "Being unique is the basis of Aadhaar," he said. The court observed that minimal demographic and biometric data is collected by UIDAI under Aadhaar. "There is no possibility of obtaining a duplicate Aadhaar card," Justice Sikri read out. He stated that Aadhaar remains secure with the use of CIDR and "remains unparalleled", and said it empowers marginal sections of the society.

CBSE, NEET and UGC making Aadhaar mandatory is bad and they cannot do so," the three judges stated. "Aadhaar can't also be insisted for admission to schools. For the enrollment of children, the consent of parents would be essential."

As of now, the Centre has issued 139 notifications, practically touching every aspect of a citizen's day-to-day life. Over the years, the central government attempted to make Aadhaar mandatory to avail a range of services including filing taxes, bank accounts, mobile phones and digital payments. It is currently mandatory for MGNREGA, PDS and LPG subsidies. No person could, however, be declined services not having an Aadhaar card.

Dissenting with the majority judgement and agreeing with some arguments made by petitioners, Justice Chandrachud stated that the Speaker was wrong in classifying Aadhaar Bill as a Money Bill as it denuded the federal structure of law-making by limiting the role of the Rajya Sabha in the Aadhaar Bill.

"Aadhaar Bill could not have been regarded as a Money Bill its passage as such was illegal and hence liable to be struck down. The passage of Aadhaar Act as money bill was a subterfuge," Justice Chandrachud commented adding that the passing Aadhaar Act as a money bill was a fraud in the Constitution.

"Aadhaar poses a serious risk of surveillance and also a compromise of data stored under Aadhaar. Aadhaar program, in its entirety, is unconstitutional," Justice Chandrachud observed. He stated that the Aadhaar Act is silent on the liability of the UIDAI. 

Justice Ashok Bhushan, reading out his opinion, largely agreed with the majority judgement. Justice Bhushan stated that Aadhaar does not violate the right to privacy and it passes the three-fold test in the nine-judge bench decision.

The case

As of now, the Centre has issued 139 notifications, practically touching every aspect of a citizen's day-to-day life. Over the years, the central government attempted to make Aadhaar mandatory to avail a range of services including filing taxes, bank accounts, mobile phones and digital payments. It is currently mandatory for MGNREGA, PDS and LPG subsidies. No person could, however, be declined services not having an Aadhaar card.

In the second-longest hearing for a case, a five-judge Constitution Bench comprising CJI Dipak Misra and Justices AK Sikri, AM Khanwilkar, Ashok Bhushan and DY Chandrachud heard the petitions for 38 days over a period of four months. The five-judge bench began hearing on January 17, and reserved its judgement on May 10. The case had been referred by the apex court to a Constitution Bench for hearing in 2015.

UIDAI was launched in 2009, and Aadhaar numbers were given from September 2010. In 2012, Aadhaar was challenged in court by Justice K S Puttaswamy (Retd) on the grounds that it did not safeguard an individual’s privacy, and that essential services cannot be held back for the lack of an Aadhaar card. The plea was later joined by a number of other petitioners including Magsaysay awardee Shanta Sinha, researcher Kalyani Sen Menon, social activists Aruna Roy, Nikhil De, Nachiket Udupa, CPI leader Binoy Visman and others.

In September 2013, in an interim order, Justices B S Chauhan and S A Bobde said that Aadhaar was not necessary to avail essential services from the government.

In March 2015, a three-judge bench comprising Justices Jasti Chelameswar, S A Bobde and C Nagappan reiterated the 2013 order, and issued a warning to the government.

In July 2015, the court heard petitions which said that Aadhaar was a violation of privacy, and the demands made by the government to link welfare schemes with Aadhaar violated the court’s 2013 interim order. To this, the government argued that the right to privacy was not absolute, referring to the verdicts in MP Sharma case of 1954 and the Kharak Singh case of 1962.

In August that year, the court, in an interim order, permitted the Centre to link Aadhaar data with the public distribution system (PDS) and LPG subsidy, and referred the matter to a Constitution Bench and framed various questions. This included the decision on whether the right to privacy was a fundamental right. In October 2015, a three-judge bench led by Justice Chelameswar refused to allow Aadhaar to be used proof of identity by banks, stock markets, the IRDA, telecom companies etc. However, the court allowed Aadhaar to be voluntarily linked to pension schemes.

In March 2016, the ruling government passed the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill as a Money Bill in the Lok Sabha, rejecting the changes that the Rajya Sabha had suggested. In October, the government made Aadhaar mandatory to avail LPG subsidy, despite the court stating that it must remain voluntary.

In July 2017, the case was transferred to the five-judge Constitution bench, to be headed by the then Chief Justice of India, J S Khehar. This bench decided that a nine-judge bench must first decide if the Right to Privacy is a fundamental right. In August that year, the Right to Privacy was declared as a fundamental right. The court said that privacy is intrinsic under Article 21 and other freedoms guaranteed under Part III of the Constitution.

In 2018, the court began to hear the case. The legal battle against Aadhaar from day one was led by senior counsel Shyam Divan who appeared for Justice Puttaswamy and later represented the other petitioners also.

The Central government was particularly piqued over Divan comparing the collection of Aadhaar data to a "concentration camp", "totalitarian regime" or to that of an "electronic leash". Attorney General K K Venugopal took exception to the use of such strong words.

The hearing also saw the Unique Identification Authority of India (UIDAI) assuring the court that the demographic and biometric data collected under Aadhaar was absolutely safe without any scope of its being intruded upon.

While holding that the individual data is a goldmine of commercial information, the court in the course of the hearing had said that Aadhaar was not a catch for all the frauds. The court had also expressed concern over the safety of the demographic and biometric data collected under Aadhaar. This came at a time when there were multiple reports of Aadhaar data being hacked, leaked, being sold, and various flaws in the system’s security.

With IANS inputs

Show us some love! Support our journalism by becoming a TNM Member - Click here.