Supreme Court: In a 1448-pages detailed judgment, the 5- Judge Bench comprising of CJ Dipak Misra and A.K. Sikri, A.M. Khanwilkar, Dr D.Y. Chandrachud and Ashok Bhushan, JJ., by a majority of 4:1, declared the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 to be valid and not violative of the fundamental right to privacy. However, certain orders and/or circulars making the citing of Aadhaar number mandatory have been held unconstitutional and struck down. Justice Sikri delivered the leading opinion for CJ Dipak Misra and himself and A.M. Khanwilkar, J. While Justice Chandrachud delivered a dissenting opinion and Justice Bhushan also delivered a separate opinion in which he broadly agreed with A.K. Sikri, J.
The leading issue was whether Aadhaar Act violates the right to privacy? The Court, per majority, answered in the negative. Justice Sikri stated all matters pertaining to an individual do not qualify as being an inherent part of right to privacy. Only those matters over which there would be a reasonable expectation of privacy are protected by Article 21. The Aadhaar scheme is backed by the statute, i.e., the Aadhaar Act. It also serves legitimate State aim, which can be discerned from the Introduction to the Act as well as the Statement of Objects and Reasons which reflect that the aim in passing the Act was to ensure that social benefit schemes reach the deserving community. Aadhaar Act meets the test of proportionality. The inroads into the privacy rights where these individuals are made to part with their biometrics information, is minimal. It is coupled with the fact that there is no data collection on the movements of such individuals, when they avail benefits under Section 7 of the Act thereby ruling out the possibility of creating their profiles. The Aadhaar Act meets the test of balancing as well. As far as subsidies, services and benefits are concerned, their scope is not to be unduly expanded thereby widening the net of Aadhaar, where it is not permitted otherwise.
The salient points regarding constitutionality of the Aadhaar Act, 2016 and incidental issues are delineated hereinafter; also, the provisions, orders or circulars that have been struck down or read down or clarifies are mentioned:
A.K. Sikri, J. (for CJ Dipak Misra and himself and A.M. Khanwilkar, J.)
- Adhar project does not create surveillance State; this is ensured by the manner in which the project operates. Security measures, as per the provisions of Section 29 (3) read Section 38 (g) as well as Regulation 17 (1)(d) of the Authentication Regulations, are strictly followed and adhered to.
- Section 7 is the core provision of the Aadhaar Act and it satisfies the condition of Article 110 of the Constitution. Thus, the Aadhaar Act was validly passed as Money Bill.
- Section 139-AA of the Income Tax Act, 1961 which mandates quoting of Aadhaar for filing IT Returns and applications for PAN is not violative of the right to privacy. It satisfies the test of permissible limits and therefore is not unconstitutional.
- Rule 9 of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 which mandates linking of Aadhaar with bank accounts in its present form does not meet the test of proportionality, violates the right to privacy.
Circular dated 23 March 2017, mandating linking of Aadhaar with mobile number held to be illegal, unconstitutional and thereby was quashed.
Clarification of a few provisions:
- Authentication records are not to be kept beyond period of six months.
- Metabase relating to transaction held to be impermissible; needs amendment.
- Section 33(1) read down; an individual whose information is sought to be released, shall be afforded an opportunity of hearing.
- Section 57 partially unconstitutional insofar as it enables body corporate or individual to seek authentication.
- Benefits and services as mentioned in Section 7 should be those which have the colour of same kind of subsidies etc., namely, welfare schemes of the Government whereby Government is doing out such benefits which are targeted at a particular deprived class. It would cover only those benefits etc. the expenditure whereof has to be drawn from the Consolidated Fund of India. On that basis, CBSE, NEET, JEE, UGC etc., cannot make the requirement of Aadhaar mandatory as they are outside the purview of Section 7 and are not backed by any law.
- For enrollment of children under Aadhaar Act, it would be essential to have consent of their parents. On attaining majority, they would have the option to exit from the project.
- Requirement of Aadhaar not to be mandatory for school admission of children as it is neither a service nor subsidy.
Dr D.Y. Chandrachud, J., gave a 23-points conclusion to the opinion wherein he dissented from the majority. In his opinion, the entire Aadhaar programme, since 2009, suffers from the constitutional infirmities and violations of fundamental rights. The enactment of the Aadhaar Act does not save the Aadhaar project. The Aadhaar Act, the Rules and Regulations framed under it, and the framework prior to the enactment of the Act are unconstitutional.
The opinion of Justice Chandrachud can be summarized in the following paragraph as stated by the dissenting Judge himself:
“Creating strong privacy protection laws and instilling safeguards may address or at the very least assuage some of the concerns associated with the Aadhar scheme which severely impairs informational self-determination, individual privacy, dignity and autonomy. In order to uphold the democratic values of the Constitution, the government needs to address the concerns highlighted in this judgment which would provide a strong foundation for digital initiatives, which are imminent in today’s digital age. However, in its current form, the Aadhaar framework does not sufficiently assuage the concerns that have arisen from the operation of the project…”
Ashok Bhushan J., divided the batch of cases into two parts, firstly, the challenge to Executive’s Scheme dated 28 January 2009 notified by the Government of India, by which the Unique Identification Authority of India was constituted to implement the UIDAI Scheme, and secondly, challenge to the Aadhaar Act, 2016. The learned Justice broadly agreed with the leading opinion of Justice Sikri. However, Rule 9 of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 which is struck down as violative of right to privacy by A.K. Sikri J., was upheld by Ashok Bhushan, J.
In view of the aforesaid discussion and observations, the writ petitions, transferred cases, special leave petition, contempt petitions and all the pending applications were accordingly disposed of. [K.S. Puttaswamy v. Union of India (Aadhaar-5 Judge), 2018 SCC Online SC 1642, decided on 26-09-2018]