‘Aadhaar’ is the Hindi word for ‘basis’. But in English AADHAAR is an abbreviation that has sparked a conflict involving 1.3 billion Indians. Apart from a proof of identity that defines your primary existence, Aadhaar – a 12 digit number has also been blamed for attempting to violate people’s basic right to privacy. And this is why deciding upon the constitutional validity of the Aadhaar became a cold war spanning nearly four and half months. But today, the Aadhaar verdict is out.
Since January, 2018 the five judge bench of the Supreme Court heard numerous arguments for and against the Aadhaar. The bench comprised of Chief Justice Dipak Mishra, Justices A K Sikri, A M Khanwilkar, Ashok Bhushan and D Y Chandrachud. Termed as one of the longest running Supreme Court cases, the bench delivered its verdict today that had a majority of 4:1.
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What’s in the Verdict?
There was no decision until about 11:00 a.m. this morning on whether the Aadhaar was constitutional or not. But in a matter of minutes Justice A K Sikri read out a decision supported by Chief Justice Dipak Mishra, Justices A M Khanwilkar, Ashok Bhushan and Sikri himself. While it has not completely scrapped the Aadhaar, here are the most important highlights of the pronouncement.
Primary Opinions
Justice Sikri’s opening statements began with three simple points. Firstly, Aadhaar must require only a minimal amount of data. Minimal data implies the basic 12 digit Aadhaar number, name of the holder, communication details and date of birth. Extracting or storing more information than necessary is a threat to privacy. Secondly, Aadhaar is not a primary or overriding proof of identity. Other documents such as PAN cards, Voter IDs, etc. which are provided to create an Aadhaar are also proofs of identity. Thirdly, since Aadhaar is based on biometrics, it is unparalleled. Hence, no duplication of it is possible.
Retaining Data
As he continued reading the judgement, Justice Sikri also made it clear that Aadhaar related data cannot be maintained beyond a span of 6 months. The bench has struck down certain sections of the Aadhaar Act, 2016 as follows:
- 33(1) – This section earlier allowed disclosure of biometric data by an order of the Court delivered by not lesser than a District Judge.
- 33(2) – This section prescribed sharing sensitive data in the interest of national security.
- 47 – This section formerly enabled only the UIDAI to bring in complaints regarding offences under the Aadhaar Act in a court of law.
- 57 – This section allowed corporate entities and other persons to utilise the Aadhaar number for other purposes under law.
The verdict has deemed all of the above sections as unconstitutional.
Private Operators and Corporate Entities cannot collect AADHAAR Data
All of us have gone through the Aadhaar linking drill. From linking it with SIM cards and bank accounts to producing it to enrol our children in educational institutions; Aadhaar had become a dissented compulsion. But in today’s phenomenal decision, Justice Sikri announced that private entities will no more have the right to access Aadhaar data.
This implies that citizens will not have to share Aadhaar data to obtain a new mobile connection, neither can private banks demand its linking to accounts. The question here was whether public sector banks can still use Aadhaar data. But since the judgement has made it clear that corporate entities as well cannot collect it, linking of bank accounts to Aadhaar has been sidelined.
Following this judgement, a press meet addressed by Finance Minister Arun Jaitley clarified that this point is debatable. Although private entities and corporates through a contract cannot obtain Aadhaar data, they may be able to do so if backed by law. The Finance Minister also continued to say that it is too early to untangle this area of the judgement since it has just been delivered.
Aadhaar for deriving benefits from the Consolidated Fund of India
Aadhaar has not been termed unconstitutional. While citizens required the 12 digit number to receive gas subsidies or other government benefits, the requirement stands to pursue. Any benefits from the government routed through the consolidated funds of the country require an Aadhaar. This also means that Aadhaar is necessary to pay taxes and receive tax refunds as well. The Supreme Court has not ruled out linking of Aadhaar to PAN cards.
School Enrollments and Rights of Minors
The very next thing asked after birth certificates in schools is the Aadhaar. As a result, admissions to educational institutions were also never hassle free without it. But today’s decision has confirmed that Aadhaar is not mandatory for students’ enrollment to educational institutions. Other proofs of identity are as good as the Aadhaar for course admissions. Similarly UGC, NEET and CBSE examinations also do not need the provision of an Aadhaar. Students cannot be denied benefits on the ground of not having an Aadhaar. Additionally, once minors attain majority they have a right to decide if they want to keep the Aadhaar for deriving benefits from the national consolidated funds or not.
UIDAI’s Responsibility
The judgement casts a significant responsibility on the UIDAI to prevent illegal immigrants from obtaining an Aadhaar. This is a very important aspect since the government has been constantly defending the Aadhaar on grounds that it is a method of providing primary identity to Indian citizens. Hence this aspect can further the government’s claims that Aadhaar is a tool to prevent siphoning of funds and illegal activities rather than a surveillance mechanism.
Post Judgement Apprehensions
The Aadhaar verdict is out. And it seems like a balanced judgement. But the fact that we cannot ignore is that more than 1 billion Indian citizens have already enrolled for an Aadhaar. Before the pronouncement, it was obvious that the Aadhaar cannot be termed unconstitutional because it is in fact very late for such a step. Citizens have already linked their Aadhaar data to bank accounts, SIM cards and payment facilities. By disallowing maintenance of data beyond 6 months, we understand that data currently stored will soon have to be erased. But where does the argument of data compromise stand and what has today’s decision done to address it?
The nations is yet to introduce a data protection law. The government assures the introduction of a draft plan by the end of September, which is just 5 days away. But what would have been more promising was a data protection law before the Aadhaar Act. However, it is too late to argue upon this at the moment.
Further, paying taxes mean needing an Aadhaar. If you have a taxable income, you must remit taxes because the verdict has not invalidated linking PAN to Aadhaar. If the Income Tax Department has made it compulsory to link PANs to Aadhaar, and we have already done it there are two major things to note. Firstly, those who pay taxes will need an Aadhaar. Secondly, most of those who do not pay taxes will apply for government benefits. These benefits (school scholarships especially) come from the nation’s consolidated funds. And hence, in one way or the other every Indian citizen will have to succumb to the need of having an Aadhaar.
A Balanced Judgement or a New Struggle?
Of the five-judge bench, Justice D Y Chandrachud was the only one who had certain disagreements. As per his opinion the Aadhaar has violated the right to privacy and must be termed unconstitutional. He further observed that passing it as a money bill has resulted in a fraud on the constitution. The government’s defence on the contrary, was that Aadhaar facilitates money disbursements through the public distribution system. And hence, the Aadhaar bill had to take the form of a money bill. But since the majority of the bench had a different opinion, the final verdict remains unaffected by these arguments.
The decision undoubtedly appears balanced at first instance. A major win comes from the denial of data sharing with private entities and other third parties. This too is subject to parley. But what we cannot overlook is how the exclusion from government benefits may continue in the absence of an Aadhaar for the marginalised. Does ‘not having’ an Aadhaar imply refusal of government benefits?
Also, Aadhaar based payment systems may no longer continue. As a result, there will definitely be a new tool to continue with digital transactions. A PAN based payment system seems most likely. With PANs linked to Aadhaar and also to bank accounts, an indirect connection still remains between the Aadhaar and bank accounts.
The verdict is out. But is it’s interpretation right? We really hope Indian citizens will not have to face newborn horrors as a result of the Aadhaar verdict. If that’s the case, way we’ll be back to square one.