Aadhaar Verdict: Supreme Court upholds constitutional validity of Aadhaar Act; allows Aadhaar-PAN Linking

Sep 26, 2018 17:25 IST
Aadhaar Verdict: Supreme Court upholds constitutional validity of Aadhaar Act 2016

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.

Judgment of Justice AK Sikri on behalf of himself, CJI Dipak Misra and Justice AM Khanwilkar

  • Aadhaar has become the most discussed subject in recent past.
  • There is no possibility of duplicating Aadhaar due to the biometrics; and it collects only minimum demographic and biometric details.  He said Aadhaar is "unique in an unparallelled way."
  • Section 57 of the Aadhaar Act struck down. Section 57 allows private entities to use Aadhaar for verification purpose.
  • Section 33(2) has also been struck down. Section 33(2) allows UIDAI to share data with specially authorised officers in the interest of national security.
  • No person's right can be denied on the ground of lack of Aadhaar.
  • Section 47 struck down, now any individual can file complaints.
  • Aadhaar metadata cannot be stored for more than six months. The Act allowed storage of such data for five years.
  • Aadhaar fails only 0.232 percent, but dismantling Aadhaar now would mean disturbing 99 percent of the population enrolled.

Judgment of Justice Chandrachud: Strikes down the validity of Aadhaar

  • Aadhaar Act can be passed as money bill and hence it can only cover benefits drawn from Consolidated Fund of India. Article 110 has specific grounds for Money Bill and Aadhaar law went beyond these grounds.
  • Aadhaar violates Informational privacy, data protection.
  • Aadhaar poses risk on potential violation of leakage of database and leakage from central database will pave way for surveillance.
  • Rights of 1.2 billion citizens cannot be tested as a mere contract with UIDAI.
  • Section 47 also violates citizens’ rights, absence of independent regulatory framework.
  • Section 57 violates 14 and 21 of the Constitution.
  • Section 7 is unconstitutional. Section 7 makes Aadhaar mandatory for getting state subsidies.
  • The Act provided no grievance redressal mechanism, regulators or independent monitoring authority.
  • 139AA Of Income Tax Act is Unconstitutional; Chandrachud dissents with majority
  • Mobile phone linking with Aadhaar is not permissible. Mobile phones are a storehouse of information about lifestyle, preferences. Service providers shall forthwith delete any information collected by them after linking Aadhaar with SIM.
  • Aadhaar program in its entirety is unconstitutional.

Judgment of Justice Ashok Bhushan

  • In the name of Aadhaar, rightful beneficiaries should not be denied services, subsidies, or benefits.
  • To make Aadhaar Act a Money Bill requires judicial review. 
  • He upheld the Aadhaar-PAN linkage and also agreed with Sikri’s judgment that Aadhaar is not mandatory for mobile connections.
  • He also struck down Section 57 that allows private entitites to use Aadhaar.

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.

Aadhaar - PAN Linkage mandatory

 

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.

Aadhaar linkage not mandatory for getting pension: Union Government

Schools cannot deny admission for lack of Aadhaar: UIDAI

UIDAI launches blue coloured Baal Aadhaar

Aadhaar not mandatory for booking International Parcel: Department of Posts

 

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