The Supreme Court on Wednesday upheld the constitutional validity of Aadhaar by a 4:1 majority and said it does not violate a person’s right to privacy. However, it struck down certain provisions of the Aadhaar Act.
The majority judgement was read by Justice AK Sikri on behalf on Chief Justice Dipak Misra and Justice AM Khanwilkar. Justice Ashok Bhushan, who read out a separate judgement, largely agreed with Sikri. Only Justice DY Chandrachud dissented.
The court upheld linking Permanent Account Numbers with Aadhaar to file income tax returns, but said Aadhaar need not be linked to mobile phones and bank accounts. People will also not need to provide Aadhaar to get a new number or open a bank account. “It does not satisfy the test of proportionality,” Sikri said.
Sikri said schools, the Central Board of Secondary Education, the National Eligibility cum Entrance Test and the University Grants Commission cannot ask for Aadhaar either. “No child can be denied any schemes if they are not able to bring their Aadhaar number,” he said.
His judgement also upheld the passing of Aadhaar Act as a Money Bill. When the government passed an Aadhaar Act in 2016, it was pushed through Parliament as a Money Bill, meaning it did not need assent from the Rajya Sabha, where the ruling Bharatiya Janata Party did not have a majority.
Sikri began reading the judgement with: “It is better to be unique than the best. Best is number one, but unique means the only one.” He held that Aadhaar’s benefits are far greater than the problems with exclusion. “Aadhaar empowers marginalised section of societies as it gives identity to such persons,” he said.
The court, however, struck down some sections of the Aadhaar Act. The sections include Section 57, which enables private bodies to seek authentication, Section 32(2), which dealt with the requirement of disclosure of Aadhaar information to an officer not below the rank of Joint Secretary to the Indian government, and Section 33(1), which permits disclosure of Aadhaar information on orders of a district judge.
Justice Sikri, in his judgement, also provided guidelines to prevent and minimise exclusion. He said the court is not trivialising exclusion but pointed out that “inclusion is the purpose of the Act, and if we have to throw out the full Act on that ground it would be [like] throwing the baby out with the bathwater”.
“The purpose of the Aadhaar Act is legitimate,” he said, adding that its rational connection to purpose is satisfied and the Act’s balancing test is satisfied insofar as only minimal data is collected. “Profiling [is] not possible using Aadhaar,” he added. “Sufficient safeguards to disallow it.”
Justice Bhushan, in his concurring judgement, upheld the linking of bank accounts and income-tax returns with Aadhaar but struck down phone linking as it is “not backed by law”.
Holding that Aadhaar does not violate privacy, “Implementation problems and shortcomings do not make Section 7 of Aadhaar Act unconstitutional. No material record to say exclusion has increased post Aadhaar. Authorities will have to take steps to minimise exclusion.” He also said the certification of Aadhaar Act as a Money Bill can be reviewed by court.
He also added that Aadhaar’s architecture does not facilitate surveillance.
The judgement is available here.