The five-judge Constitution Bench of the Supreme Court on September 26, 2018 upheld most of the provisions of the Aadhaar Act by 4:1 Majority while hearing the petitions challenging the constitutional validity of Aadhaar (Targeted Delivery of Financial and Other. Subsidies, Benefits and Services) Act, 2016.
Of the five-judges, Chief Justice Dipak Misra, and Justices A.K. Sikri, A.M. Khanwilkar, Ashok Bhushan validated the provisions of the Aadhaar with few restrictions, while Justice D.Y. Chandrachud held that the entire Aadhar project is unconstitutional.
The Aadhaar, issued by the UIDAI, seeks to establish a database of personal identity of every Indian resident, by assimilating their demographic and biometric information.
| Key points of the judgment |
| - Majority of judges upheld the validity of Aadhaar, Justice Chandrachud dissented. - Section 57 of the Aadhaar Act, allowing private entities to use Aadhaar for verification purpose, struck down. - Aadhaar - PAN Linkage mandatory. - No need of Aadhaar for CBSE, NEET, UGC and school admissions. - No need of Aadhaar for mobile connections and for opening bank accounts. |
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| Judgment on Aadhaar Linkage | ||
| No need of Aadhaar for CBSE , NEET, UGC | Justice Sikri held that CBSE , NEET, UGC making Aadhaar mandatory is bad and they cannot do so. | |
| No need of Aadhaar for School Admission | School admission cannot be on the basis of Aadhaar. | |
The apex court upholds the Section 139AA of Income Tax Act; making it is mandatory to link Aadhaar with PAN Card for filing Income Tax Return. Aadhaar is also mandatory for filling application for allotment of Permanent Account Number. | ||
| No need of Aadhaar for opening of bank accounts | Aadhaar not mandated for opening of bank accounts. | |
| No need of Aadhaar for mobile connections | Aadhaar not mandatory for mobile connections. | |
Earlier on May 10, the five-judge Constitution Bench, comprising Chief Justice Dipak Misra and Justices A. K. Sikri, A. M. Khanwilkar, D. Y. Chandrachud and Ashok Bhushan, reserved its order on the same after 38 days long hearing. These petitions have been pending since 2012.
In the words of Attorney General KK Venugopal, May 2018 hearing was the longest hearing in the history of the apex court, second only to that in the landmark Kesavananda Bharti case. As many as 27 petitions were heard against Aadhaar scheme.
Sequence of Supreme Court’s hearings
| September 23, 2013 | A two judges bench directed that no person be made to suffer for not possessing a Unique Identification (UID) Number even if the same has been mandated by any government authority and that the Aadhar card be issued only after due inspection. |
| March 24, 2014 | It was reiterated that no one shall be deprived of any services or social schemes for the want of Aadhar or UID number. |
| March 16, 2015 | Supreme Court’s September 2013 order was reiterated and reaffirmed by a three-judge bench. |
| August 11, 2015 | Same three-judge bench held that the government shall publicise that Aadhar is not mandatory for any social security schemes other than Public Distribution System scheme and the LPG Distribution scheme. The bench asked for setting up of a bench of 5 judges to examine this question. |
| October 15, 2015 | Subsequently, a 5 judge bench of the apex court added the MGNREGA scheme, the National Security Assistance Programme, the PM Jan Dhan Yojana and Employees’ Provident Fund Scheme to the earlier list of schemes that require Aadhaar. However, it was held that order dated September 2013 shall continue to be in force and Aadhar shall be purely voluntary till the matter is finally decided. |
| July 18, 2017 | Five-judge constitution bench decided to set up a nine-judge bench to decide whether the Right to Privacy can be declared a fundamental right under the Constitution. |
| August 24, 2017 | A nine-judge bench of the Supreme ruled that the Right to Privacy is the Fundamental Right under Article 21 of the Indian Constitution. The bench observed that privacy is intrinsic to freedom of life and personal liberty guaranteed under Article 21 of the Constitution. |
| May 10, 2018 | Constitution Bench reserved its order on the Constitutional validity of Aadhaar Act after 38 days of long hearing. |
| Note: Meanwhile, on the sidelines of the Supreme Court’s hearings, the government mandated the linkage of Aadhaar Card with PAN Card, Mobile number, and payment apps as a means of KYC norms. | |
Privacy is a Fundamental Right under Article 21: Supreme Court
A nine-judge bench of the Supreme Court on August 24, 2017 ruled that the Right to Privacy is the Fundamental Right under Article 21 of the Indian Constitution. The bench observed that privacy is intrinsic to freedom of life and personal liberty guaranteed under Article 21 of the Constitution.
The bench overruled the previous judgments in the M P Sharma and Kharak Singh cases, which declared that the Right to Privacy was not protected by the Constitution.
Henceforth, this verdict was termed as a historic one and was considered as a course to determine whether the submission of an individual’s Aadhaar number can be made compulsory for access to government schemes or not. The question of whether Aadhaar violates the Right to Privacy or not still lingered on.
Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016
• The Union Government on 12 July 2016 notified the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
• Eligibility: Every resident shall be entitled to obtain an Aadhaar number. A resident is a person who has resided in India for 182 days, in the one year preceding the date of application for enrolment for Aadhaar.
• Information to be submitted: To obtain an Aadhaar number, an individual has to submit biometric (photograph, finger print, iris scan) and demographic (name, date of birth, address) information.
• Enrolment: At the time of enrolment, the individual will be informed of the manner in which the information will be used, the nature of recipients with whom the information will be shared and the right to access this information.
• Usage of Aadhaar number: To verify the identity of a person receiving a subsidy or a service, the government may require them to have an Aadhaar number. If a person does not have an Aadhaar number, government will require them to apply for it.
• Key Functions of UIDAI: The UIDAI authority will specify demographic and biometric information, assign Aadhaar numbers to individuals, authenticate Aadhaar numbers and specify the usage of Aadhaar numbers for delivery of subsidies and services.
About UIDAI
• The Unique Identification Authority of India (UIDAI) was founded in 2009 under the United Progressive Alliance (UPA) regime with former Infosys CEO Nandan Nilekani as its chairman. Nilekani resigned in 2014.
• Unique identification project was initially started by the Planning Commission as an initiative that would provide identification for each resident across the country.
• It is used primarily as the basis for efficient delivery of welfare services. It also acts as a tool for effective monitoring of various programs and schemes of the Government.
• It is the organisation behind the Aadhaar, a 12 digit unique number linked with an individual’s demographic and biometric information. Aadhaar serves as the proof of identity and address anywhere in India.
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