The Supreme Court’s majority judgment on the Aadhaar Act held that the unique identification system did not create a surveillance state.
New Delhi: The Supreme Court, by a majority decision Wednesday, upheld the constitutional validity of the Aadhaar Act.
While it struck down the contentious clause that allowed private sector to demand Aadhaar details as proof of identification, it held that the Act did not create a surveillance state.
The bench also found nothing wrong in the government taking the money bill route to get the law passed in Parliament.
Here are excerpts from the majority judgment authored by Justice A.K. Sikri on behalf of himself, Chief Justice of India Dipak Misra and Justice A.M. Khanwilkar.
On the constitutional validity of Aadhaar Act
As against the above larger public interest, the invasion into the privacy rights of these beneficiaries is minimal. By no means it can be said that it (Aadhaar) has disproportionate effect on the right-holder.
We are, by no means, accepting that when dignity in the form of economic welfare is given, the State is entitled to rob that person of his liberty. That can never be allowed. We are concerned with the balancing of the two facets of dignity.
Here we find that the inroads into the privacy rights, where these individuals are made to part with their biometric information, is minimal.
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In the present case as well, we have come to the conclusion that Aadhaar Act is a beneficial legislation which is aimed at empowering millions of people in this country… In such a scenario only on apprehension, the project cannot be shelved.
It has also to be kept in mind 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.
The Constitution does not exist for a few or minority of the people of India, but “We the people.
On whether Aadhaar creates a surveillance state
The architecture of Aadhaar as well as the provisions of the Aadhaar Act do not tend to create a surveillance state. This is ensured by the manner in which the Aadhaar project operates.
During the enrolment process, minimal biometric data in the form of iris and fingerprints is collected. The authority (Unique Identification Authority of India) does not collect purpose, location or details of transaction. Thus, it is purpose-blind.
The information collected, as aforesaid, remains in silos. Merging of silos is prohibited. The requesting agency is provided answer only in ‘Yes’ or ‘No’ about the authentication of the person concerned. The authentication process is not exposed to the internet world.
After going through the Aadhaar structure, as demonstrated by the respondents in the powerpoint presentation from the provisions of the Aadhaar Act and the machinery which the authority has created for data protection, we are of the view that it is very difficult to create profile of a person simply on the basis of biometric and demographic information stored in CIDR (Central Identities Data Repositotry).
As regards core biometric information which comprises fingerprints, iris scan, for the purpose of enrolling in Aadhaar scheme, we have already held earlier that it is minimal information required for enrolment.
On why Aadhaar is a welcome step
It (Aadhaar) gives identity to those persons who otherwise may not have any such identity. In that manner, it recognises them as residents of this nation and in that form gives them their ‘dignity’.
Identity of a person has a significance for every individual in his/her life. In a civilised society every individual, on taking birth, is given a name. Her place of birth and parentage also becomes important as she is known in the society and these demographic particulars also become important attribute of her personality.
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Throughout their lives, individuals are supposed to provide such information: Be it admission in a school or college or at the time of taking job or engaging in any profession or business activity, etc. When all this information is available in one place, in the form of Aadhaar card, it not only becomes unique, it would also qualify as a document of empowerment. Added with this feature, when an individual knows that no other person can clone her, it assumes greater significance.
To put it tersely, in addition to enabling any resident to obtain such unique identification proof, it is also to empower marginalised section of the society, particularly those who are illiterate and living in abject poverty or without any shelter etc. It gives identity to such persons also.
It is better to be unique than the best. Because, being the best makes you the number one, but being unique makes you the only one… Education took us from thumb impression to signature; technology has taken us from signature to thumb impression, again… It (Aadhaar) has become a symbol of digital economy and has enabled multiple avenues for a common man.
On safeguards with regard to protections of Aadhaar data
Insofar as use and protection of data is concerned, having regard to the principles enshrined in various cases, Indian and foreign, the matter is examined from the standpoint of data minimisation, purpose limitation, time period for data retention, data protection and security (qua CIDR, requisite entities, enrolment agencies and registrars, authentication service agency, hacking, biometric solution providers, substantive procedural or judicial safeguards).
After discussing the aforesaid aspect with reference to certain provisions of the Aadhaar Act, we are of the view that apprehensions of the petitioners stand assuaged with the striking down or reading down or clarification of some of the provisions.
On right-to-privacy-versus-Aadhaar debate
There needs to be balancing of two competing fundamental rights, right to privacy on the one hand and right to food, shelter and employment on the other hand. Axiomatically both the rights are founded on human dignity. At the same time, in the given context, two facets are in conflict with each other.
As against the above larger public interest, the invasion into the privacy rights of these beneficiaries is minimal.
On children being enrolled for Aadhaar
It has to be kept in mind that when children are incapable of giving consent, foisting compulsion of having Aadhaar card upon them would be totally disproportionate and would fail to meet the proportionality test.
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 right to exit from Aadhaar, if they so choose.
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Insofar as the school admissions of children are concerned, requirement of Aadhaar would not be compulsory as it is neither a service nor subsidy.
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.
On Aadhaar being mandatory to avail of benefits under social welfare schemes
In the instant case, a holistic view of the matter, having regard to the detailed discussion hereinabove, would amply demonstrate that enrolment in Aadhaar of the unprivileged and marginalised section of the society, in order to avail the fruits of welfare schemes of the government, actually amounts to empowering these persons.
On the one hand, it gives such individuals their unique identity and, on the other hand, it also enables such individuals to avail the fruits of welfare schemes of the government which are floated as socio-economic welfare measures to uplift such classes.
In that sense, the scheme ensures dignity to such individuals. This facet of dignity cannot be lost sight of and needs to be acknowledged.
We are, by no means, accepting that when dignity in the form of economic welfare is given, the State is entitled to rob that person of his liberty. That can never be allowed. We are concerned with the balancing of the two facets of dignity.
On government taking the money bill route
For all the aforesaid reasons, we are of the opinion that the bill was rightly introduced as a money bill. Accordingly, it is not necessary for us to deal with other contentions of the petitioners, namely, whether certification by the Speaker about the bill being money bill is subject to judicial review or not, whether a provision which does not relate to money bill is severable or not.
On mandatory linking of Aadhaar with bank acocunts
We hold that the provision in the present form does not meet the test of proportionality and, therefore, violates the right to privacy of a person which extends to banking details.