Aadhaar is constitutionally valid: All you need to know

It may be a judgment not many were hoping for. But it is nonetheless significant.

 |  8-minute read |   26-09-2018
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Today, the Supreme Court laid down the law of the land, at least in terms of Aadhaar. The 12-digit unique identification number, the apex court’s bench announced, was constitutionally valid. There were, of course, a few caveats.

Since its conception in 2006 and launch in 2009 — the creation of the Unique Identification Authority of India (UIDAI) — Aadhaar has secured the enrolment of almost 1.1 billion people in this country. But what started as a voluntary measure, built on the premise of improving welfare service delivery and providing yet another form of identification for people, soon turned into a tyrannical scheme hell-bent on making the lives of those who — and a majority of them are already marginalised — did not possess this unique identity card, difficult. It also became a cause of concern in terms of surveillance and privacy with the definition of biometric data — a requisite for Aadhaar — being left intentionally vague in the Aadhaar act, and the security apparatus that safeguarded the data of more than one billion people falling short at every turn.

priv_092618060920.jpgEyes wide shut: There are obvious loopholes in the usage of Aadhar which seem to evade the authorities. (Photo: Reuters)

Aadhaar, for some time now, has been opposed by civil society groups, activists, even politicians because of all the aforementioned problems and more. Despite the clear lack of a mandatory status, Aadhaar has been contentiously pushed by the Centre for not just welfare schemes, but various other facets of everyday functioning. Private companies too, perhaps taking the Centre’s cue, have jumped onto this bandwagon of an Aadhaar-linked refurbishment.

Today’s judgment is not what many (at least, those part of the anti-Aadhaar movement) were hoping for. That does not, however, mean that today’s judgment is not significant.

But before heading to the ramifications, let’s look at what the overarching points of this judgment state:

1) Bank accounts do not need to be linked with Aadhaar: 

Linking of a banking account to Aadhaar was challenged as a violation of Articles 14, 19(1)(g) and 21 of the Constitution along with that of the Prevention of Money Laundering Act, 2002. Justice Arjan Kumar Sikri, the Supreme Court judge who authored the judgment, noted that the government’s stated reasons for the linking of bank accounts with Aadhaar — curbing black money — despite being legitimate, lacked “serious thinking”.

Making the requirement of Aadhaar compulsory for everyone in the name of checking money laundering or black money, according to Sikri, was “grossly disproportionate”. He added that, “There should have been a proper study about the methods adopted by persons who indulge in money laundering, kinds of bank accounts which such persons maintain and target those bank accounts for the purpose of Aadhaar. It has not been done.”

2) SIM cards do not need to be linked with Aadhaar:

On March 23, 2017, the Department of Telecommunications (DoT) directed that all licensees would have to re-verify existing mobile subscribers (pre-paid and post-paid) through Aadhaar-based e-KYC process, a directive that anti-Aadhaar petitioners claimed was in violation of the right to one’s privacy. The reason for such linkages was that “non-verification of SIM cards has posed serious security threats”.

The apex court bench, however, noted that such a move not only “lacks backing of a law, it fails to meet the requirement of proportionality as well.”

“There can be other appropriate laws and less intrusive alternatives. For the misuse of such SIM cards by a handful of persons, the entire population cannot be subjected to intrusion into their private lives. It also impinges upon the voluntary nature of the Aadhaar scheme,” wrote Sikri, declaring the March 23, 2017 DoT circular declaring the Circular unconstitutional.

3) Aadhaar link not compulsory for children and education schemes: 

Sikri, in the judgment, noted that, “benefit which is earned by an individual cannot be covered under Section 7 of the Aadhaar Act, as it is the right of the individual to receive such benefit.”

Benefits and services as mentioned in Section 7, read the judgment, should be those which have the “colour of some kind of subsidies, etc.,” like welfare schemes of the government whereby the government is doling out benefits targeted at a particular deprived class. On that basis, the court concludes that CBSE, NEET, JEE, UGC, etc., cannot make the requirement of Aadhaar mandatory for they are outside the purview of Section 7 and are not backed by any law.

In the same vein, the court declared that Aadhaar cannot be made mandatory for school admission or benefits under the Sarva Shiksha Abhiyan.

Circulars and notifications issued through various functionaries, schools, The Ministry of Human Resource Development (MHRD), which have mandated production of Aadhaar card details for the children seeking admission to schools and to link Aadhaar numbers of already-enrolled students infringe on the idea of Aadhaar as a voluntary scheme.

Sikri cited Article 21A of the Constitution, which guarantees the right to education and makes it a fundamental right of children between 6 years and 14 years of age, saying that such a right cannot be taken away by imposing a requirement of holding an Aadhaar card on the children.

The court also noted that when the children are incapable of giving consent, foisting a compulsion of having an Aadhaar card upon them would be “totally disproportionate and would fail to meet the proportionality test”.

education_092618063408.jpgEducation is a funadmental right. A lack of Aadhaar cannot stop a child from learning. (Photo: Reuters)

4) Private companies can no longer ask for Aadhaar:

Legality, which postulates the existence of law; need, defined in terms of a legitimate state aim; proportionality which ensures a rational nexus between the objects and the means adopted to achieve them — forms the basis of what is called the "threefold test" laid down by a nine-judge Constitutional bench in the 2017 right to privacy judgment.

Section 57 of the Aadhaar Act, which allowed for Aadhaar to be used by any company in addition to the state, was deemed unconstitutional with the note that for the use of Aadhaar by private companies to be legal, “there has to be a valid law in existence, which should also pass the 'threefold test'”.

Private companies, thus, can no longer ask for Aadhaar for services and applications.

5) Aadhaar is compulsory for obtaining welfare:

Section 7 of the Aadhaar Act — the Central government or the state government may, for the purpose of establishing identity of an individual as a condition for receipt of a subsidy, benefit or service for which the expenditure is incurred from the Consolidated Fund of India, require that such individual undergo authentication, or furnish proof of possession of an Aadhaar number or in the case of an individual to whom no Aadhaar number has been assigned, such individual makes an application for enrolment — was not found in violation of the fundamental right to privacy in a majority judgment by the court.

Ergo, to benefit from subsidies and welfare, Aadhaar is a requisite.

While Justice DY Chandrachud of the bench is of a very different opinion — “Constitutional guarantees cannot be compromised by vicissitudes of technology”— the others on the bench noted that Section 7 of the Aadhaar is perfectly constitutional and that “the provision does not deserve to be struck down on account of denial in some cases of right to claim on account of failure of authentication.”

6) Aadhaar has to be linked to PAN card and is required for filing Income Tax returns: 

According to the majority judgment, the requirement of linking Aadhaar to PAN card and requiring the same, once again, while filing tax returns is a legitimate state interest and does not violate the fundamental right to privacy.

With regard to section 139AA of the Income Tax Act, which made it mandatory for PAN card holders to link their PAN with Aadhaar, the judgement noted that, “An Act which is manifestly arbitrary would be unreasonable and contrary to rule of law and, therefore, violative of Article 14 of the Constitution. Even when we consider the provisions of Section 139AA of the Income Tax Act, 1961 from this point of view, it cannot be said that the provision suffers from the vice of manifest arbitrariness.”

The judgment also states that Section 139­AA is fully compliant of “three­fold test” and thus does not breach the fundamental right of privacy of an individual. Hence, it cannot be struck down on that ground.  

***

breach-2_092618061017.jpgCan her data be safeguarded please? (Photo: Reuters)

Beyond what is valid and what isn’t lie the implications of these new diktats.

While it is welcome to find that Aadhaar is no longer a requisite for a lot of everyday services, from a strict economic point of view, the only section that does not necessarily require an Aadhaar to exist in India now onwards falls under the bracket of those not so poor as to require government welfare and subsidies, but also not so rich as to have their incomes taxable.

That margin is a lean one. Effectively, most of the people who have already been enrolled under Aadhaar would still require its use regularly.

With Aadhaar now being mandatory for welfare services — a diktat that is far from perfect — a lot of overhaul is required on the government’s part. Justice Chandrachud rightly noted that, “Mandating Aadhaar for benefits and services under Section 7 would lead to a situation in which citizens will not be able to live without Aadhaar.”

For starters, the infrastructure that links Aadhaar and welfare schemes needs to be improved upon. There have been multiple cases of death due to starvation that were caused by the failure of public distribution systems. With Aadhaar being mandatory for such schemes now, it should be the first priority of the government to ensure no “glitches” occur in the system that would prevent the oppressed and the marginalised from availing health benefits and food.

Along with that, the security of Aadhaar data must be addressed. The priority of such an act is only accentuated by how vulnerable databases are to breaches, as has been proven time and again.

Also read: Aadhaar loses its teeth after SC verdict but it will still bite you because we are Indians

Writer

Pathikrit Sanyal Pathikrit Sanyal @bucketheadcase

The author is a culture writer who likes talking about the internet, memes, privacy and all things pop culture.

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