L Badri Narayanan

The Supreme Court delivered a landmark decision in the case where the constitutional validity surrounding the Aadhaar scheme was challenged (Justice K.S. Puttaswamy (Retd.) and Anr. v. Union of India & Ors). The Aadhaar (Targeted Delivery of Financial and Other Subsidies, benefits and Services) Act, 2016 was challenged on various grounds and the Supreme Court upheld large parts of the scheme as being constitutional by means of a 4-1 majority.

The main thrust of the attack on the Aadhaar scheme was on the ground of privacy and the risk of Aaadhar converting India into a surveillance state. The majority rejected the arguments relating to these aspects by applying a test of proportionality. SC on balancing legitimate state aims with right to privacy felt that Aadhar scheme was worthy of being implemented.

However, SC realised that there were aspects to the Aadhaar scheme that could affect the individuals adversely if abused. The Court read down the provisions relating to the period during which the authentication data could be stored. Some provisions of the scheme were struck down which related to personal liberties and violations of natural justice.

Crucially, SC struck down part of Section 57 of the Aadhaar Act, which allowed a private company to seek Aadhaar authentication. This part of the decision affects banks and telecommunication companies significantly as these companies were seeking to get citizens to link their Aadhaar card to their company in order to continue receiving their services.

An important aspect that the Aadhaar judgment discusses is the consent of minors in the process. Children were being made to enroll in the scheme for availing services of various schemes such as mid-day meal. The judgement clarifies that consent of parents is required and that on attaining majority, the child will have the option to exit from the Aadhaar scheme.

The judgement, however, does leave open the door to future litigation. The Aadhaar scheme itself was brought in for allowing the government to address targeted schemes at specific sections of the society.

SC recognises this aspect and held that enrollment is voluntary. Further, it held that the Aadhaar scheme becomes compulsory for anyone seeking ‘subsidy, benefit or service’ under welfare scheme of the government met from the Consolidated Fund of India. What would qualify for such schemes at present and in the future is likely to be a source for future litigation and challenges.

Nevertheless, the decision is a landmark judgment that seeks to balance a multitude of considerations. The impact of the judgement is likely to be profound. It will impact various issues relating to privacy, data protection, personal liberties and legitimate state claim in the coming years as we move towards a more digital society.

The author is Partner, Lakshmikumaran & Sridharan