Quest for the golden mean

The Apex Court has retained the constitutional validity of Aadhaar but taken away most of its teeth

Lord Buddha taught us the Middle Path, neither this extreme nor the other, neither steeped in customs and religiosity, nor steeped in crass materialism with an all-out negation of spiritualism.

The Supreme Court on Wednesday has taken the Middle Path or sought to put in a Golden Mean. It has retained the constitutional validity of Aadhaar as an identity document and for certain government benefits and subsidies but taken away most of its teeth for private sector use and possible abuse.

In a historic judgment, the Supreme Court upheld the constitutional validity of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits, and Services) Act, 2016, and scheme by a 4:1 majority. The judgment was pronounced by a bench of Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud, and Ashok Bhushan. Justice Chandrachud's views dissented from the majority.

What Aadhaar cannot do

So the private entities cannot avail your Aadhaar data anymore. The Supreme Court struck down Section 57 of the Aadhaar Act. It said that private companies (telecoms and banks included), and individuals cannot insist on Aadhaar data to provide consumer services. The Supreme Court seems to have struck down these provisions as they were not necessary and proportionate to the original purpose of Aadhaar (which as stated in the Aadhaar Act is a distribution of welfare subsidies). This means that digital wallets such as Paytm or Amazon Pay cannot demand Aadhaar data from customers in order to do a verification and allow them to continue using the services.

Aadhaar data can't be shared with security agencies - the SC read down Section 33 (2) which means that your Aadhaar data cannot be shared with security agencies in the name of upholding national security. Earlier, according to Section 47 of the Aadhaar Act, only the Government of India could complain about the theft of Aadhaar data. But the Supreme Court ruled that private individuals too can complain about it. Schools and colleges cannot seek child's Aadhaar details, on any occasion including their admission. It is not mandatory for CBSE, NEET, UGC, etc., in the educational life-cycle of a young Indian.

The Supreme Court verdict, however, does not make it clear whether the companies which have accessed all the Aadhaar data till date, will now be required to delete this data. It is also not clear whether users can go to these companies and demand that they delete Aadhaar-related data. In any case, the Court has said Aadhaar authentication data can be stored for a maximum of six months.

What Aadhaar can do

However, statutory authorities can mandate the linking of Aadhaar number for availing its services, subsidies, etc. Also, the Supreme Court said that Aadhaar passed the three-fold test in 9 judge bench decision. It does not violate an individual's privacy. One of the judges in the majority view noted that problems in implementation and shortcomings do not make Section 7 unconstitutional. The SC noted that the Central government had given sufficient reasons to uphold Section 7 of Aadhaar Act, which deals with grant of subsidies and welfare benefits.

The majority view also held that a lot of people who will benefit due to inclusion cannot be denied due to exclusion of few; can't throw the baby out with the bathwater. It is better to be unique than to be the best. The uniqueness of UID is the difference as claimed by Government of India and it empowers marginalised section of societies as it gives identity to such persons. Minimal demographic and biometric data of citizens are collected by the UIDAI for Aadhaar enrolment. Aadhaar number given to a person is unique and can't go to any other person. Aadhaar identification is unparalleled hence, the SC held.

Also, Aadhaar is mandatory to be linked with PAN card and for the filing of income tax returns.

Even in case of the need of Aadhaar as an identity by the state authorities, use of Aadhaar will be limited to only those purposes which are backed by a law. And so, if there is no law, Aadhaar cannot be made mandatory and if there is a law, it can be challenged as well. The SC also asked the Central government to introduce a robust data protection law as soon as possible.

In an interesting debate on public interest versus state interest, Justice Sikri said, "We follow the "larger public interest" as against the "compelling public state interest" test. Respect grounded in human dignity is exposited in the judgment. Also discussed is dignity not only in reference to an individual but also dignity within the community. "

The lone dissenting voice

It is also important to note the scope of the dissenting view of Justice Chandrachud. He noted that allowing private players to use Aadhaar will lead to profiling which could be used in ascertaining political views, etc., of citizens. 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. Hence, Section 7 is arbitrary and unconstitutional. Section 7 of the Act suffers from overbreadth because it uses services and benefits, and enables the government to regulate every facet of a person's life. Legitimate aim of state can be fulfilled by using less intrusive methods.

He also held that Aadhaar cannot have been a money bill. Not even in Section 7. Passing a Bill which is not a money bill as a money bill is a subterfuge and a fraud on the Constitution.

He succinctly noted "Our decision must understand the dilemma between technology and power and Mark areas where the sanctity of individual is inviolable. Society is witnessing a shift into a knowledge economy. At the heart of the project lies power."

Aadhaar: The background

A brainchild of the UPA government, the Aadhaar Bill was passed by the Narendra Modi government in 2016, with the mode of the passage of the Bill itself raking up controversy. The government termed the Aadhaar Act, 2016, as a Money Bill and passed it in Lok Sabha. However, former Union Minister Jairam Ramesh challenged the manner used for the passage of the Aaadhar Act and the case was clubbed with the petitions, on which the SC has now given this verdict.

Aadhaar is presently the world's largest biometric and identity database with 122.56 crore numbers issued to Indian citizens. These have been used for 2,322 crore authentications.

Challenge ahead

Today's judgment, as read out in court, signals massive changes in the Aadhaar project and the Act. The legitimacy of its stated purposes is all but destroyed. Even the majority of the judges signals significant concern by reading down portions.

(The author is Dean of Media, Pearl Academy, Delhi and Mumbai. The views expressed are strictly personal)

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