india

Updated: Oct 23, 2018 07:28 IST

There is uncertainty over whether telcos will delete all biometric data and Aadhaar details of subscribers following the Supreme Court’s September 26 judgment.

The court’s judgment upheld the constitutional validity of the nation’s ambitious biometrics and demographic information project, Aadhaar. Its majority order, delivered by then Chief Justice Dipak Misra, and Justices AK Sikri, AM Khanwilkar and Ashok Bhushan upheld the constitutional validity of Aadhaar. It also said section 57 of the Aadhaar Act that allows private firms to collect Aadhaar data by “contract” is unconstitutional; private firms’ collection of Aadhaar data must be backed by law, it added.

Justice DY Chandrachud, in the only dissent judgment, said the government and the Telecom Regulatory Authority of India must also direct all telecom service providers to “delete the biometric data and Aadhaar details of all subscribers within two weeks”.

The confusion over the deletion is about whether a minority judgment can be seen as an extension of the majority judgment when the bench concurs on a particular aspect, and whether quashing of mobile linkage with Aadhaar automatically means deleting all Aadhaar data collected for this.

There are votaries for all three outcomes.

Minority judgment is binding law: Prasanna S

“The judgment is clear. Just because it’s a minority judgment, it does not stop being a Supreme Court judgment,” said Prasanna S, a lawyer who has assisted petitioners in the Aadhaar case.

You can find what is law declared also in a minority judgment, and that principle has been set in stone in Indian jurisprudence since the 1950s,” said Prasanna S., a lawyer who has assisted petitioners in the Aadhaar case.

“In this case as far as telecom linking is concerned, we saw that all five were in concurrence that it was unconstitutional. One judge says you need to delete the data. Therefore, that direction is to be read as the view of the court,” said Prasanna.

“Minority judgments of the highest court of the land cannot by any stretch be treated as mere academic writing. There are several high court and Supreme Court precedents that have treated declarations and directions of a minority judgment to be binding law - and with good reason,” he added.

The judgment is unclear, will need clarification: Arghya Sengupta

“The judgment isn’t clear on this question. It is clear on the fact that the circular that mandated Aadhaar linkage is unconstitutional. If that is bad in law, then actions taken under that law are also illegal. The court has not said whether this applies prospectively, or if there’s going to be some time period for compliance,” said Arghya Sengupta, research director, Vidhi Centre for Legal Policy, which provided assistance to the UIDAI in drafting the Aadhaar Act.

The SC has scrapped the department of telecommunications circular, but hasn’t specified what happens to actions taken under that circular, he said. “I would say that if the SC were to order someone to delete data that has been collected, then that would be one thing. On the other hand, to keep data when there is no clear direction to that effect may not also be correct. Since this aspect has not been deliberated upon, and is one that is quite significant for public interest, a clarification must be sought from the court,” Sengupta added.

“In the silence of the majority, you can’t say this one aspect of the minority could plug this void. That’s a wrong way to read the judgment.”

Telcos don’t have to delete Aadhaar data: Rahul Matthan

Reading the text of the judgment closely, Rahul Matthan, a partner-lawyer in technology and media practice at the law firm Trilegal, and author of Privacy 3.0., said, “I don’t think telcos need to delete Aadhaar data. The majority opinion is the operational part of the judgment. Justice Chandrachud wrote the dissent and so what he said cannot alter the operational part of the judgment.”

“One argument being used is that when the minority concurs with the majority on an issue, anything additional it says on that point amplifies the majority. The majority says Aadhaar should not be linked to mobile numbers and because the dissent not only agrees with this but goes further and asks for Aadhaar data to be deleted, some are arguing that telecom data should be deleted. I disagree. A dissent cannot be a partial dissent. Justice Chandrachud disagrees with the majority and has recorded his views without any attempt to impose them on the majority. We have to respect that and trust that if the majority had agreed they would have reflected his views in the operational judgment,” Matthan said.

Matthan also highlighted some of the gaps in the judgment. “In reading down section 57, the judgment has only said that private companies cannot use the authentication system. Nowhere has it said that data previously collected by them must be deleted. In fact, in para 367, they say that a person may use his Aadhaar card voluntarily as a proof of identity. Justice Chandrachud is the only one who speaks of deletion and even he only speaks of it in the context of telcos. Nothing has been mentioned in the context of banks or anything else.”

There is no positive obligation on telcos to delete: Zoheb Hosain

“There is no positive obligation on telcos to delete the Aadhaar data. If the court has intended for the data to be deleted, then there would be suitable directions to that effect. Usually there is something known as judicial conference. There is a presumption that judges have read each other’s judgment even though they may not say so explicitly. And under this presumption, if the majority judgment has not reiterated the views of Justice Chandrachud, then it can be presumed that directions of the minority view cannot be construed as the law declared by the SC,” Zoheb Hosain, a lawyer for UIDAI in the SC case, said.

Deletion only on request: Govt and Industry bodies

The Unique Identification Authority Of India (UIDAI), the department of telecommunications and the Cellular Operators Association of India (COAI), an industry body of mobile service bodies, have all said telcos will not delete data unless requested by the customer.

“The Honourable Supreme Court in its judgment in Aadhaar case has nowhere directed that the mobile number which has been issued through Aadhaar eKYC has to be disconnected. If anybody wishes to get her/his Aadhaar eKYC replaced by the fresh KYC, s/he may request the service provider for delinking of her/his Aadhaar by submitting fresh OVDs as per earlier DoT Circulars on mobile KYC,” UIDAI said in a joint statement with the department of telecommunications last week.

Meanwhile, COAI has confirmed that telcos would not be deleting Aadhaar data unless specifically requested for. “There is no question of delinking Aadhaar en-masse. Delinking will be done only on the customer’s request,” said Rajan Mathews, director general, COAI.