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[Aadhaar] Read The Summary Of Majority (4:1) Judgment

Much awaited Aadhaar Judgment is finally out.

The judgment authored by Justice AK Sikri, which has concurrence of Chief Justice Dipak Misra and Justice AM Khanwilkar, has read down some of the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016, struck down a few but significant ones (mainly Section 33(2), 47 and 57), and upheld the rest.

Chronology of Aadhaar case

* Jan 2009: Planning Commission notification on UIDAI.

* 2010-2011: National Identification Authority of India Bill, 2010 introduced.

* Nov 2012: Retired Justice K S Puttaswamy and others file PILs in SC challenging validity of Aadhaar.

* Nov 2013: SC orders all states and Union Territories be impleaded as respondents.

* Mar 3, 2016: Aadhaar Bill, 2016 introduced in Lok Sabha; later passed as Money Bill.

* May 2017: Former Union minister and Congress leader Jairam Ramesh moves SC Challenging

the Centre’s decision to treat Aadhaar bill as a money bill.

* Aug 24, 2017: SC nine-judge bench rules that right to privacy is a fundamental right.

* Dec 15: SC extends deadline for mandatory linking of Aadhaar with various services and welfare schemes till March 31, 2018.

* Jan 17, 2018: SC five-judge bench begins hearing Aadhaar case.

* Jan 25: SC asks Chhattisgarh HC to modify in 10 days its order directing all trial courts in the state to mandatorily accept copies of Aadhaar card for releasing an accused on bail.

* Feb 19: Delhi BJP leader Ashwini Kumar Upadhyay seeks direction to EC to take appropriate steps to implement an Aadhaar based election voting system’.

* Feb 21: SC says the alleged defect that citizens’ biometric details under the Aadhaar scheme were being collected without any law, could be cured by subsequently bringing a statute.

* Mar 7: SC says Aadhaar number not mandatory for enrolment of students in all India exams.

* Mar 13: SC extends March 31 deadline of Aadhaar linking till it gives its order.

* Mar 22: UIDAI CEO says breaking the Aadhaar encryption may take “more than the age of the universe for the fastest computer on earth”.

* Mar 28: Social activist Reshma Prasad seeks direction to the Centre to create a separate third  gender category option on PAN cards for transgenders.

* Apr 3: Centre tells SC Aadhaar law is just, fair & reasonable.

* Apr 17: SC raises concerns that there is a threat of Aadhaar data misuse.

* Apr 25: SC questions Centre on mandatory seeding of Aadhaar with mobile.

* May 10: SC reserves verdict.

* Sep 26: SC upholds constitutional validity of Aadhaar but strikes down certain provisions including its linking with bank accounts, mobile phones and school admissions.

The following summary from the judgment gives clear idea about which all provisions got erased from the statute and which all will remain in a changed form.

  • Section 2(d) which pertains to authentication records, such records would not include metadata as mentioned in Regulation 26(c) of the Aadhaar (Authentication) Regulations, 2016. Therefore, this provision in the present form is struck down. Liberty, however, is given to reframe the regulation, keeping in view the parameters stated by the Court.
  • Insofar as Section 2(b) is concerned, which defines ‘resident’, the apprehension expressed by the petitioners was that it should not lead to giving Aadhaar card to illegal immigrants. We direct the respondent to take suitable measures to ensure that illegal immigrants are not able to take such benefits.
  • Retention of data beyond the period of six months is impermissible. Therefore, Regulation 27 of Aadhaar (Authentication) Regulations, 2016 which provides archiving a data for a period of five years is struck down.
  • Section 29 in fact imposes a restriction on sharing information and is, therefore, valid as it protects the interests of Aadhaar number holders. However, apprehension of the petitioners is that this provision entitles Government to share the information ‘for the purposes of as may be specified by regulations’. The Aadhaar (Sharing of Information) Regulations, 2016, as of now, do not contain any such provision. If a provision is made in the regulations which impinges upon the privacy rights of the Aadhaar card holders that can always be challenged.
  • Section 33(1) of the Act prohibits disclosure of information, including identity information or authentication records, except when it is by an order of a court not inferior to that of a District Judge. We have held that this provision is to be read down with the clarification that an individual, whose information is sought to be released, shall be afforded an opportunity of If such an order is passed, in that eventuality, he shall also have right to challenge such an order passed by approaching the higher court. During the hearing before the concerned court, the said individual can always object to the disclosure of information on accepted grounds in law, including Article 20(3) of the Constitution or the privacy rights etc.
  • Insofar as Section 33(2) is concerned, it is held that disclosure of information in the interest of national security cannot be faulted with. However, for determination of such an eventuality, an officer higher than the rank of a Joint Secretary should be given such a power. Further, in order to avoid any possible misuse, a Judicial Officer (preferably a sitting High Court Judge) should also be associated with. We may point out that such provisions of application of judicial mind for arriving at the conclusion that disclosure of information is in the interest of national security, are prevalent in some jurisdictions. In view thereof, Section 33(2) of the Act in the present form is struck down with liberty to enact a suitable provision on the lines suggested above.
  • Insofar as Section 47 of the Act which provides for the cognizance of offence only on a complaint made by the Authority or any officer or person authorised by it is concerned, it needs a suitable amendment to include the provision for filing of such a complaint by an individual/victim as well whose right is violated.
  • Insofar as Section 57 in the present form is concerned, it is susceptible to misuse inasmuch as: (a) It can be used for establishing the identity of an individual ‘for any purpose’. We read down this provision to mean that such a purpose has to be backed by law. Further, whenever any such “law” is made, it would be subject to judicial scrutiny. (b) Such purpose is not limited pursuant to any law alone but can be done pursuant to ‘any contract to this effect’ as well. This is clearly impermissible as a contractual provision is not backed by a law and, therefore, first requirement of proportionality test is not met. (c) Apart from authorising the State, even ‘any body corporate or person’ is authorised to avail authentication services which can be on the basis of purported agreement between an individual and such body corporate or person. Even if we presume that legislature did not intend so, the impact of the aforesaid features would be to enable commercial exploitation of an individual biometric and demographic information by the private entities. Thus, this part of the provision which enables body corporate and individuals also to seek authentication, that too on the basis of a contract between the individual and such body corporate or person, would impinge upon the right to privacy of such individuals. This part of the section, thus, is declared unconstitutional.
  • Other provisions of Aadhaar Act are held to be valid, including Section 59 of the Act which, according to us, saves the pre-enactment period of Aadhaar project, i.e. from 2009-2016.

Aadhaar Do Not Tend To Create A Surveillance State.

The majority judgment authored by Justice Sikri also holds that the architecture of Aadhaar, as well as the provisions of the Aadhaar Act, do not tend to create a surveillance state. It was observed that this aspect is ensured by the manner in which the Aadhaar project operates. The judges also found that it is very difficult to create profile of a person simply on the basis of biometric and demographic information stored in CIDR and -Insofar as authentication is concerned, there are sufficient safeguard mechanisms.

 In this regard, the majority judgment holds as follows.

  • Authentication records are not to be kept beyond a period of six months, as stipulated in Regulation 27(1) of the Authentication Regulations. This provision which permits records to be archived for a period of five years is held to be bad in law.
  • Metabase relating to transaction, as provided in Regulation 26 of the aforesaid Regulations in the present form, is held to be impermissible, which needs suitable amendment.
  • Section 33(1) of the Aadhaar Act is read down by clarifying that an individual, whose information is sought to be released, shall be afforded an opportunity of hearing
  • Insofar as Section 33(2) of the Act in the present form is concerned, the same is struck down.
  • That portion of Section 57 of the Aadhaar Act which enables body corporate and individual to seek authentication is held to be unconstitutional.
  • Bring out a robust data protection regime in the form of an enactment on the basis of Justice B.N. Srikrishna (Retd.) Committee Report with necessary modifications.

‘Reasonable Expectation Of Privacy’

The Court held that 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. It also held that the Aadhaar scheme, which is backed by the statute, i.e. the Aadhaar Act also serves legitimate State aim. However, the court clarified-

  • ‘Benefits’ and ‘services’ as mentioned in Section 7 should be those which have the colour of some kind of subsidies etc., namely, welfare schemes of the Government whereby Government is doling out such benefits which are targeted at a particular deprived class
  • It would cover only those ‘benefits’ etc. the expenditure thereof 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.

Aadhaar and Children

With regard to enrolment of children, the court held as follows:

  • For the enrolment of children under the Aadhaar Act, it would be essential to have the consent of their parents/guardian.
  • On attaining the age of majority, such children who are enrolled under Aadhaar with the consent of their parents, shall be given the option to exit from the Aadhaar project if they so choose in case they do not intend to avail the benefits of the scheme.
  • Insofar as the school admission of children is concerned, the requirement of Aadhaar would not be compulsory as it is neither a service nor subsidy. Further, having regard to the fact that a child between the age of 6 to 14 years has the fundamental right to education under Article 21A of the Constitution, school admission cannot be treated as ‘benefit’ as well.
  • Benefits to children between 6 to 14 years under Sarv Shiksha Abhiyan, likewise, shall not require mandatory Aadhaar enrolment.
  • For availing the benefits of other welfare schemes which are covered by Section 7 of the Aadhaar Act, though enrolment number can be insisted, it would be subject to the consent of the parents, as mentioned in (a) above.
  • We also clarify that no child shall be denied benefit of any of these schemes if, for some reasons, she is not able to produce the Aadhaar number and the benefit shall be given by verifying the identity on the basis of any other documents.

Upholds Passing of Aadhaar Act as Money Bill

 The bench which also observed that Aadhaar Act meets the concept of Limited Government, Good Governance and Constitutional Trust, upheld the passing of the Act as a ‘Money Bill’. It said that Section 7 is the core provision of the Aadhaar Act and this provision satisfies the conditions of Article 110 of the Constitution.

PAN Linking Upheld, Bank-Mobile Linking Unconstitutional

The court further held that Section 139AA of the Income Tax Act, 1961 is not violative of right to privacy as it satisfies the triple test (I) existence of a law; (ii) a ‘legitimate State interest’; and (iii) such law should pass the ‘test of proportionality’,

However, the bench held that the move of mandatory linking of Aadhaar with bank account does not satisfy the test of proportionality. It has been also held that Mandatory linking of mobile number with Aadhaar is held to be illegal and unconstitutional as it is not backed by any law.

Justice ASHOK BHUSHAN almost agrees with Justice Sikri judgment

Following is the summary from Justice Ashok Bhushan’s judgment

  • The requirement under Aadhaar Act to give one’s demographic and biometric information does not violate fundamental right of privacy.
  • The provisions of Aadhaar Act requiring demographic and biometric information from a resident for Aadhaar Number pass three­fold test as laid down in Puttaswamy (supra) case, hence cannot be said to be unconstitutional.
  • Collection of data, its storage and use does not violate fundamental Right of Privacy.
  • Aadhaar Act does not create an architecture for pervasive surveillance.
  • Aadhaar Act and Regulations provides protection and safety of the data received from individuals.
  • Section 7 of the Aadhaar is constitutional. 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.
  • The State while enlivening right to food, right to shelter etc. envisaged under Article 21 cannot encroach upon the right of privacy of beneficiaries nor former can be given precedence over the latter.
  • Provisions of Section 29 is constitutional and does not deserves to be struck down.
  • Section 33 cannot be said to be unconstitutional as it provides for the use of Aadhaar data base for police investigation nor it can be said to violate protection granted under Article 20(3).
  • Section 47 of the Aadhaar Act cannot be held to be unconstitutional on the ground that it does not allow an individual who finds that there is a violation of Aadhaar Act to initiate any criminal process
  • Section 57, to the extent, which permits use of Aadhaar by the State or any body corporate or person, in pursuant to any contract to this effect is unconstitutional and void. Thus, the last phrase in main provision of Section 57, i.e. “or any contract to this effect” is struck down.
  • Section 59 has validated all actions taken by the Central Government under the notifications dated 28.01.2009 and 12.09.2009 and all actions shall be deemed to have been taken under the Aadhaar Act.
  • Parental consent for providing biometric information under Regulation 3 & demographic information under Regulation 4 has to be read for enrolment of children between 5 to 18 years to uphold the constitutionality of Regulations 3 & 4 of Aadhaar (Enrolment and Update) Regulations, 2016.
  • Rule 9 as amended by PMLA (Second Amendment) Rules, 2017 is not unconstitutional and does not violate Articles 14, 19(1)(g), 21 & 300A of the Constitution and Sections 3, 7 & 51 of the Aadhaar Act. Further Rule 9 as amended is not ultra vires to PMLA Act, 2002.
  • Circular dated 23.03.2017 being unconstitutional is set aside.
  • Aadhaar Act has been rightly passed as Money Bill. The decision of Speaker certifying the Aadhaar Bill, 2016 as Money Bill is not immuned from Judicial Review.
  • Section 139­AA does not breach fundamental Right of Privacy as per Privacy Judgment in Puttaswamy case.
  • The Aadhaar Act does not violate the interim orders passed in Writ Petition (C) No. 494 of 2012 and other Writ Petitions.

Chronology of Aadhaar case; Source; PTI

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