Context

The Supreme Court upheld the validity of India’s ambitious biometric identity project, ‘Aadhaar’, saying it benefited the marginalized and poor, but sharply reined in a government push to make it mandatory for various services.

What is Aadhaar?

Aadhaar is a 12 digit unique-identity number issued to all Indian residents based on their biometric and demographic data. The data is collected by the Unique Identification Authority of India (UIDAI), a statutory authority established by the Government of India, under the Ministry of Electronics and Information Technology, under the provisions of the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016.

What are the benefits of Aadhar?

1. JAM trinity –  Jan DhanYojana, Aadhaar and Mobile numbers – This will make the government support to poor more targeted and less distortive.
2. Identification of the beneficiaries of the government’s welfare schemes – Aadhar will help to remove fake and duplicates identities. It can be used to filter the list of beneficiaries and stop the leakage of public money.
3. To tackle the black money issue – Use of Aadhar in financial transactions can reduce the menace of black money in the country.
4. In Income tax return – Use of Aadhar in income tax filing will reduce the number of documents needed. It can make the process more efficient and cost-effective way.
5. In Opening a bank account – There is no need to collect multiple identity proofs or run around for documentation. Your humble Aadhaar Card is ample proof of your identity and address.
6. In getting subsidies directly to the bank account – By linking Aadhar with bank accounts, subsidies like LPG will get credited to bank account directly.
7. To get pension money on time – By just registering with the Aadhaar number, pension-related documentation process will be eased and a timely payout of pension money can be ensured.
8. The issue of digital Life certificate – Aadhar number can be used to get a digital life certificate. It will help pensioners without the hassle of physically going to the bank and submitting the life certificate.
9. Easy Provident Fund disbursement – The Aadhaar will ensure that the Provident Fund money is not diverted and is disbursed directly to the pensioner’s account.
10. Accepted as a proof of address by Securities and Exchange Board of India (SEBI) for investing in stock market.
11. Mapping development parameters – In critical sectors of the country like healthcare and education, Aadhar can be used to map the development process.
12. It can help to map skilled manpower, based on the vocational training acquired by the individual, to suitable job vacancies/ skill requirements of the State.

Issues with Aadhar and Aadhar Act

1. Questionable Legal Backing: The current legal backing of Aadhar is via a money bill. The Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016 came into force in 2016, but this is now challenged in Supreme Court.
2. Issues with sharing information collected under Aadhaar – The provisions in the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016 Act with regard to the protection of identity information and authentication records may be affected by recent verdict by Supreme Court that Right to Privacy is a Fundamental Right.
3. Violation of rights – It was argued that the UIDAI might share the biometric information of people with other government agencies and thus would violate people’s right to privacy.
4. Has potential to profile individuals – The Act does not specifically prohibit law enforcement and intelligence agencies from using the Aadhaar number as a link (key) across various datasets (such as telephone records, air travel records, etc.) in order to recognise patterns of behaviour. Eg The Facebook–Cambridge Analytica data scandal.
5. Discretionary powers of UIDAI – The Act empowers the UID authority to specify demographic information that may be collected. The only restriction imposed on the authority is that it shall not record information pertaining to race, religion, caste, language, etc of the individual.
6. Furthermore, UID has exclusive power to make complaints and the courts cannot take cognizance of any offence punishable under the Aadhaar Act unless a complaint is made by the UID authority.
7. The time period for maintaining authentication records – The bill does not specify the maximum duration for which authentication records may be stored by the UID authority.
8. There are high possibilities of data theft, data leak or breach. Eg. Aadhaar numbers and bank details of over 134,000 beneficiaries on Andhra Pradesh Housing Corporation’s website have been leaked.

What of the Aadhaar Act has the court struck down?

• Section 33(1) which allows disclosure of information, including identity and authentication records, if ordered by a court not inferior to that of a District Judge. Individuals should be given the opportunity of a hearing.
• Section 33(2) which allowed identity and authentication data to be disclosed in the interest of national security on direction of an officer not below the rank of Joint Secretary to the Government of India. A Judicial Officer (preferably a sitting High Court Judge) should be associated with it and that the government should bring in legislation to this effect.
• Section 47 which referred to cognizance of offences. Under this Section, no individual was allowed to file a complaint if he/she felt their data was leaked or misused. The law only allowed the court to take cognizance of a complaint filed by UIDAI or anyone authorised by it. Any individual will now be allowed to file a complaint if he/she feels their data has been compromised.
• Section 57 refers to the use of Aadhaar data by any “body corporate or person” to establish the identity of an individual. Justice Sikri, in his judgment, found this section to be unconstitutional. It was under this provision that private companies like Paytm and Airtel Payments Bank sought Aadhaar details from customers.

The implications of the Aadhaar verdict:

1. Aadhaar is mandatory for filing of income tax returns (ITR) and allotment of Permanent Account Number (PAN).

2. Most commercial banks, payments bank and e-wallet companies like Paytm, they cannot seek Aadhaar data i.e. Aadhaar authentication for bank accounts is now a thing of the past.

3. Telecom service provider cannot seek Aadhaar details from you. Justice Chandrachud has favoured deletion of consumers’ Aadhaar data by mobile service providers.

4. Students of CBSE, NEET, UGC also do not require Aadhaar number to appear in exams. Even schools cannot seek Aadhaar card for admissions.

5. Aadhaar card is however must for availing facilities of welfare schemes and government subsidies as it empowers the poor and marginalised.

6. The Supreme Court has made exception for children saying that no child can be denied benefits of any scheme if he or she doesn’t have Aadhaar card.

7. The apex court has struck down Section 57 of the Aadhaar Act as “unconstitutional”. This means that no company or private entity can seek Aadhaar identification from you.

8. The constitution bench has also struck down the national security exception under the Aadhaar Act. This will indirectly ensure greater privacy of individual’s Aadhaar data while restricting the government accessibility to it.

9. The Supreme Court judgement, said it would not lead to a surveillance state because the data was kept in silos. The program’s invasion of privacy was minimal and served a much larger public interest by providing identities to India’s poor and marginalized citizens.

10. The court said that under present Aadhaar scheme and structure, it is difficult to profile a person on the basis of minimal biometric information collected.

The dissent in the Court’s verdict

• In his dissent, Justice Chandrachud argued that the passage of the Aadhaar Act as a ‘money bill’, has superseded the Rajya Sabha’s authority and this “constitutes a fraud on the Constitution”. As a result of this “debasement of a democratic institution”, he held the Aadhaar Act unconstitutional.
• He also expressed his displeasure at the government passing a series of orders making Aadhaar compulsory for various reasons, in defiance of interim orders from the Supreme Court.
• He highlighted the biometric authentication failures that have led to denial of rights and legal entitlements. Further he ruled that denial of benefits arising out of any social security rights is “violative of human dignity and impermissible under our constitutional scheme”.

Aadhar Card and Right To Privacy – Can They Co-Exist?

Previous Supreme Court Rulings:

1. In Kharak Singh case (1962), a six-judge judgment — held that the Right to Privacy was not a fundamental right.
2. In Govind vs. State of Madhya Pradesh (1975), the Supreme Court held that “many of the fundamental rights of citizens can be described as contributing to the Right to Privacy”. After this, the approach to interpretation of fundamental rights had undergone a fundamental change. The scope of article 21 of Constitution was broadened through subsequent judgments.
3. In Maneka Gandhi (1978), the SC held that any law and procedure authorizing interference with personal liberty and Right of Privacy must also be right, just, and fair, and not arbitrary, fanciful, or oppressive.”
4. In R Rajagopal vs State of Tamil Nadu (1994), Supreme Court held that the Right to Privacy is implicit in the right to life and liberty guarantee by Article 21. A citizen has a right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, child-bearing and education among other matters.

From these rulings, it can be inferred that though the Constitution does not specify ‘right to privacy’ as a fundamental right, but the subject has evolved considerably in India, and privacy is now seen as an ingredient of personal liberty.

The Need of hour to ensure Data Privacy:- Justice AP Shah Committee

• In its zeal to aggregate data in electronic form and target subsidies better, the government cannot ignore its responsibility to protect citizens from the perils of the cyber era.
• Legislation- it is imperative that the Union Government enact a privacy legislation that clearly defines the rights of citizens and it should be consistent with the provision of the Constitution.
• The government should factor in privacy risks and include procedures and systems to protect citizen information in any system of data collection.
• It should create an institutional mechanism such as the Privacy Commissioner to prevent unauthorised disclosure of or access to such data.
• Our national cyber cell should be made well capable of dealing with any cyber-attack in the shortest time.
• We need to educate people on the risks involved and highlight examples of ID thefts and fraud.
• The government should recognise all dimensions of the right to privacy and address concerns about data safety, protection from unauthorised interception, surveillance, use of personal identifiers and bodily privacy.
• We need to take a level-headed approach and ensure that ample safeguards are put in place for data protection and privacy.

The Way Ahead:

• The court also ruled that the authentication record should not be kept beyond the period of six months and the provision that allowed archive records for five years has been struck down.
• It has excluded storage of meta-data of transactions by individuals. This banning means UIDAI cannot collect data sets and mine it for more data or analysis. It has also struck down data sharing with corporates.
• The Supreme Court also called for Parliament to draft and pass a data protection law immediately. “We have also impressed upon the respondents to bring out a robust data protection regime in the form of an enactment on the basis of Justice BN Srikrishna (Retd.) Committee Report with necessary modifications thereto as may be deemed appropriate.”

Conclusion

• This judgment should reassure all citizens that Aadhaar has been put into place by this government to ensure that curse of corruption and leakages in use of public money is once in for all removed from our system.
• The main concerns of rights of citizens and correcting the imbalance in Aadhaar Act vis-a-vis UIDAI has been corrected by Supreme Court and UIDAI will now evolve into a transparent accountable institution.
• The ban on metadata storage, minimum data and only six months of data storage strengthen the citizens Right to Privacy.
• Along with Section 66 A, Privacy as Fundamental Right and this verdict on Aadhaar– these three cases mark the basic shaping of the future of a Digital India with solid clear legal rights for Indians.