New Delhi: The Supreme Court on Wednesday declared the Aadhaar programme and the Aadhaar Act 2016 to be constitutional, but placed strict limitations on the scope of the project while striking down several contentious provisions of the legislation including clauses that allowed sharing of data for national security purposes and the usage of the biometric authentication system by private corporations.

In a three-judge majority order, the court also read down the five-year rule for archival storage of transaction logs and also struck down any storage of metadata with regard to Aadhaar authentication.

Of the five judge-bench that delivered the verdict, three justices delivered separate opinions. Justice A.K. Sikri delivered the majority opinion, with Chief Justice Dipak Misra and Justice A.M. Khanwilkar concurring with him.

In his majority opinion, Justice Sikri noted that Aadhaar cannot be made mandatory and linked to bank accounts, mobile phone connections and a number of education schemes. In particular, the judge called out the changes to the Prevention of Money Laundering Act (PMLA), which laid the foundation for mandatory Aadhaar-bank linking, as “unconstitutional” and noted that it did not satisfy the test of proportionality.

However, Section 139AA of the Income Tax Act has been upheld, which means that Aadhaar-linking will be required while filing income-tax returns.

Justice D.Y. Chandrachud and Justice Ashok Bhushan have written separate opinions, with the former having partially dissented on a number of points.

Which sections of the Aadhaar Act have been struck or read down?

While Justice Sikri noted that the purpose of the Aadhaar Act was “legitimate” and that a “balancing test had been satisfied as Aadhaar only collected minimal data”, he noted that several parts of the legislation needed to be struck and read down. They are:

Section 57: The clause states that “nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person…” (emphasis added).

This provision has allowed an ecosystem of private players to use the biometric authentication system to provide identity-based services and applications. This has now been struck down

Section 33 (ii): This part of the legislation allowed disclosure of identity information and Aadhaar authentication data if “made in the interest of national security” and if done in pursuance of a “direction of an officer not below the rank of Joint Secretary”.

This has now been struck down. Sikri stated that the “joint secretary mechanism is “arbitrary” and would require a judicial warrant.

Section 47: This contentious provision noted that “no court should take cognisance of any offence punishable under the Act save on a complaint made by the Authority (UIDAI)”.

This has now been struck down, with Sikri stating that even individuals should be entitled to file complaints if they have a grievance.

Section 2 (d): This part noted that an Aadhaar “authentication record” would include the “record of the time of authentication, identity of the requesting entity and the respones provided by the Authority”.

The majority opinion has said this will be read down to not include metadata of transactions, which presumably includes all of the above.

Dismisses exclusion and money bill concerns

Two of the issues raised by petitioners revolved around welfare exclusion concerns and that the legislative process surrounding the Aadhaar Act was flawed as it was introduced a money bill in Parliament.

The majority judgement appears to have dismissed these concerns. In his opinion and summary of the judgement, Justice Sikri noted that the Aadhaar Act could have been passed as a money bill.

When it came to people being denied entitlements and rations because of Aadhaar-based technology, Justice Sikri noted that while it was “concerning”, throwing out the whole Act on this basis would be “throwing out the baby with the bathwater”.

“Unconstitutional”, says Justice Chandrachud’s dissenting opinion

In his partially dissenting opinion, Justice DY Chandrachud has disagreed on a number of crucial issues. In the parts that he read out in cart, the judge noted that that Aadhaar could not have been a money bill and that passing it as such was a “subterfuge”.

While the Aadhaar Act is legitimate, he said, it did not have “enough robust safeguards as to informed consent and individual rights such as opt-out”. As The Wirehas reported, the petitioners had stated that if Aadhaar is to be held voluntary, it would require an opt-out option for people who had already had signed up but now wanted to remove themselves from the programme.

On the core issue of whether the unique identification projected violated the fundamental right to privacy, Justice Chandrachud has disagreed to a great extent from the majority opinion. In remarks in open court, he noted that the project is “completely violative of privacy”.

“Constitutional guarantees cannot be subjected to probability algorithms and technological vicissitudes,” he said.

In sharp contrast to Justice Sikri and the majority opinion, which held that profiling is not possible as a result of the Aadhaar initiative, Justice Chandrachud noted that the not only have the government’s claims on security “not been convincing enough”, but have also fallen short of standards required to protect privacy and data protection.

Justice Ashok Bhushan goes down the middle

In the parts of his opinion that were read out in court, Justice Bhushan largely walked a middle-line between Justice Chandrachud’s sharply dissenting opinion and the majority opinion pronounced by Justice Sikri.

The judge noted that “implementation problems and shortcomings” do not make Section 7 (which mandates Aadhaar for India’s welfare system) as unconstitutional. “No material record to say that exclusion has increased post-Aadhaar,” Justice Bhushan noted.

On the issue of whether the Aadhaar project violates the right to privacy and the legitimacy of the Aadhaar Act as a money bill, Justice Bhushan has also split down the middle. While he believes that there is no “violation of privacy” as it passes the “three-fold-test” laid out in the 9-bench decision on privacy, he added that the “certification as a money bill” can be reviewed by the court.

‘Little relief to the poor’

In her initial reactions on the Aadhaar judgement, IIT-Delhi professor Reetika Khera, who has extensively studied the impact of the UID programme on welfare schemes, notes that it will provide “little relief to the poor”.

“The Aadhaar verdict is disappointing, but I am not dejected or defeated by today’s verdict,” Khera said in a statement.

“Disappointed because apart from striking down Section 57 of the Aadhaar Act the majority opinion provides little relief to the poor from Aadhaar (under Section 7), in terms of accessing essential entitlements. On this, it is disappointing that the judges who have signed the majority opinion have believed the government’s false assurances that nobody will be denied their entitlements due to Aadhaar. We know that the governments have been blatantly violating the Supreme Court’s orders since 2013, and in its present form, exclusion is built into the Aadhaar ecosystem,” she added.

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