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There is still some room for discussion on Aadhaar with J Chandrachud's forceful dissent

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Kamal Mitra Chenoy
Kamal Mitra ChenoySep 28, 2018 | 13:27

There is still some room for discussion on Aadhaar with J Chandrachud's forceful dissent

The Supreme Court's September 26 judgment upheld the constitutional validity of Aadhaar but struck down certain provisions including its linking with bank accounts, mobile phones and school admissions.

The majority judgment was Justice Sikri's judgment with which CJI Dipak Misra, Justice Ashok Bhushan (who largely agreed with Justice Sikri) and Justice AM Khanwilkar. Justice DY Chandrachud dissented, and wrote that the whole scheme violated the right to privacy and the Constitution.

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The majority judgment strongly opposed parts of Section 57 of the Aadhaar Act, noting that this Section "enables body corporate and individuals to seek authentication is held to be unconstitutional."

The court also decided to provide an opt-out option for children enrolled in Aadhaar at a young age. It ruled, "On attaining the age of majority, such children who are enrolled under Aadhaar with the consent of the parents, shall be given the option to exit from the Aadhaar project..."

Section 7 allows the government to insist on Aadhaar for providing welfare, subsidies and services, MGNREGA payments and other government schemes.

The Justice Sikri judgment also sought to reform the Aadhaar Act by amending or reading down of certain sections found in violation of constitutional rights. For example, the metadata of transactions cannot be stored under Regulation 26, while the authentication transaction data cannot be stored anymore. This would require amendments to Regulation 26 and 27.

Except in cases where it is required to be maintained by a Court or in connection with any pending dispute.

The court additionally asked the government to bring out a robust data protection regime in line with the Justice BN Srikrishna Committee, which has already submitted the draft Personal Data Protection Bill to the government.

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The 1448 page judgment came on a batch of public interest petitions challenging the Aadhaar scheme, started by the UPA regime and implemented by the NDA government. The petitioners, led by retired judge K Puttaswamy, had challenged the scheme as violative of the fundamental rights of citizens enshrined in the Constitution, especially the right to privacy.

They argued that this would lead to a surveillance state.

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The Supreme Court's September 26 judgment upheld the constitutional validity of Aadhaar. (Photo: PTI)

The majority decision was severely challenged and rejected by Justice DY Chandrachud, who drew attention to the points raised by many senior advocates countering the arguments of the majority. These included senior advocates Gopal Subramaniam, Kapil Sibal, Ashwani Kumar, Anand Grover and many others.

Justice Chandrachud observed that the usage of Aadhaar is not reasonable and does not stand the test of proportionality, an argument he himself had laid out in the 24 August 2017 Right to Privacy judgment.

The Justice had remarked, "Aadhaar does not respect people's dignity and privacy under Article 21 of the Constitution."

Does Justice DY Chandrachud's eloquent dissenting judgment matter? Even though a dissenting judgment does not carry the force of law, it does leave the possibility open for it to be referred to a larger bench at a later time.

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Legal scholar Usha Ramanthan has contended that, "The minority judgment interprets the case as people's interest and acknowledges the idea that the state is the one with power and people are the one on whom it will be exercised and therefore the balance has to be maintained."

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The court has asked the government to bring out a robust data protection regime in line with the Justice BN Srikrishna Committee. (Photo: PTI)

Justice Chandrachud highlighted the importance of the Rajya Sabha to our Parliamentary democracy. The Aadhaar Bill as a Money Bill does not require debate in the Upper House and only requires passage through the Lok Sabha.

It is in this context that Chandrachud opined, "Superseding the authority of the Rajya Sabha is in conflict with the constitutional scheme and the legitimacy of democratic institutions." He went on to add, "The ruling party in power may not command a majority in the Rajya Sabha. But the legislative role of that legislative body cannot be obviated by legislating a Bill which is not a Money Bill as a Money Bill."

In short, Justice DY Chandrachud's minority judgment is unlikely to be forgotten in a hurry — his arguments are serious and may well be cited in the months and years to come. There is still some room for discussion on the Aadhaar judgment and J Chandrachud's forceful dissent.

Last updated: September 28, 2018 | 17:36
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