A five-judge constitutional bench of the Supreme Court on Wednesday upheld the constitutional validity of Aadhaar, but with riders. Chief Justice Dipak Misra and Justice Khanwilkar Justice concurred with Justice AK Sikri’s judgement, while Justice Ashok Bhushan also largely concurred. Justice DY Chandrachud was the sole dissenter.
Sikri’s, the majority opinion, judgement said Aadhaar empowers marginalised section of the society as it gives identity to such persons. In his 40-page summary he also upheld the Aadhaar Act being passed as Money Bill, among other things.
However, Justice DY Chandrachud and said the entire Aadhaar programme is “completely violative of privacy and unconstitutional”. He said the Unique Identification Authority of India has admitted that it stores important data that is violative of the right to privacy and Article 14, the right to equality.
“Constitutional guarantees cannot be subjected to probability, algorithms and technological vicissitudes,” he said.
Chandrachud said passing Aadhaar Act as Money Bill was also unconstitutional. “Passing of bill as money bill when it does not qualify as a money bill is a fraud on Constitution, violates the basic structure,” said Chandrachud.
The judge said by declaring an ordinary bill as a money bill, the speaker limits the role of the Rajya Sabha, which was developed to express the country’s plurality. Bypassing the Upper House to pass the Act amounted to subterfuge and it was liable to be struck down as it violated Article 110 of the Constitution, he noted.
“The impermanence of power is a sober reminder for those who hold it,” Chandrachud said. “Absolute authority is a colonial precept. If a Constitution has to survive political aggrandisement, notions of power and authority must give compliance to rule of law.”
The Supreme Court judge said respondents’ claims about security and safeguards were not convincing and fell short of standards required to protect privacy and data protection. “Potential surveillance is possible through Aadhaar,” he added.
He also noted how the Unique Identification Authority of India took no responsibility for identification.
Chandrachud added that denying social welfare measures to citizens because of lack of Aadhaar was in violation of their fundamental rights.
What he agreed with
Sikri had said the linking of Aadhaar number to bank account and mobile numbers is not mandatory. Chandrachud observed that linking mobile numbers to Aadhaar could pose a grave threat to privacy, liberty, autonomy. He said allowing private companies to use the unique identification number will lead to profiling, which could be used to ascertain the political views of the citizens. Aadhaar numbers shall be deleted forthwith by the telecom companies, he said.
The judgement is available here.