Aadhaar Ruling Explained: What the 5-Judge Constitution Bench Said

Senior advocate Sajan Poovayya unpacks the Aadhaar verdict for The Quint.

It was in 2009, that the Indian government saw immense potential in the use of technology for the purposes of identification and disbursement of subsidies provided by it. Towards this end, it devised a program, namely Aadhaar, whereby biometric information of individuals was to be used for the purposes of identification and verified disbursement activities.

However, this program fell under public scrutiny and was eventually challenged before the Supreme Court. At the forefront of this challenge was the argument that it was violative of the fundamental right to privacy.

But with no set date in sight for the commencement of the final hearing on the validity of Aadhaar, its detractors sought the Supreme Court’s intervention to halt the Aadhaar bandwagon. After repeated efforts, the Supreme Court directed the Union to defer some of its plans and set down the matter for a final hearing in 2018 before a bench of five judges.

The Supreme Court, on 26 September, upheld most of the Aadhaar Act’s provisions but with conditions, by a 4:1 majority. A five-judge constitution bench headed by Chief Justice Dipak Misra and comprising Justices AK Sikri, AM. Khanwilkar, DY Chandrachud and Ashok Bhushan, delivered this historic judgment. Justice Chandrachud was the sole voice of dissent who opposed the Aadhaar Act’s constitutional validity.

The Anti-Aadhaar Petition

The 26 September 2018 judgment can be broadly classified into three parts. The foremost is the leading opinion authored by Justice Sikri for himself, Chief Justice Dipak Misra and Justice Khanwilkar. Largely agreeing with the leading opinion is Justice Bhushan’s concurring opinion. Last, but by no measure the least, is Justice Chandrachud’s dissenting opinion.

The case of the petitioners, who challenged the Aadhaar was that even though its object may be to ensure the targeted delivery of welfare schemes and prevention of pilferage, its architecture could be used in a manner which is inimical to a democratic society. This is because the personal information of an individual collected, generated and retained under the program could be processed for myriad reasons including surveillance and creation of personality profiles. Information thus processed could be used to target the individual with propaganda, alter personal choices, and indirectly control individuals.

This, according to the petitioners, vitiates against:

1. the requirement of consent to use personal data
2. the mandate that the individual should know why and for what purpose their data is being collected
3. the stipulation that data validly collected should be used only for the purpose for which it is collected
4. the prohibition of lengthy periods of data retention
5. the obligation to maintain transparency whilst processing personal data

Given the absence of a data protection regime in India, the petitioners attempted to make good their case by relying upon international best practices in the realm of data protection laws. Such practices, according to them, demonstrate that an overarching identification program which could be used for myriad purposes, as opposed to only for targeted delivery of subsidies, benefits and services, has been consistently rejected by society, in general, and judicatures, in particular.

Justice Sikri's Opinion

Justice Sikri’s opinion analyses the entire gamut of the Act and the regulations that have been framed thereunder. While he recognises the need to protect an individual’s privacy and dignity, he develops what he refers to as the "dignity of a community" to ultimately reject the principal challenge to the Aadhaar Act.

He substantiates his point by asserting that the dignity of a community is intrinsically linked with their right to welfare schemes formulated for them. He reasons that the data which is collected under the Aadhaar program amounts to a minimal invasion of a person’s privacy whilst the mandatory nature of Aadhaar for targeted delivery of welfare schemes, guarantees great benefits to members of marginal societies whilst also tackling pilferage and corruption. Thus, in his opinion, the invasion into an individual’s privacy is outweighed by the benefit meant for the enhancement of the common dignity of a society. He also observes that those who wish to remain out of the Aadhaar architecture are entitled to do so, if they do not require the benefit of a welfare scheme.

Whilst he rejects the principal argument against Aadhaar, he strikes down those provisions of the Act which do not ensure adherence to a) the mandate that the individual should know why and for what purpose their data is being collected; b) the stipulation that data validly collected should be used only for the purpose for which it is collected; c) the prohibition of lengthy periods of data retention; and d) the obligation to maintain transparency whilst processing or disclosing personal data.

Summary of What Justice Sikri Said

To summarise his opinion:

1. The Aadhaar program and Act has a legitimate aim and does not violate fundamental privacy. It is based on furthering the common dignity of marginalised communities which, in this case, triumphs over individual privacy interests.
2. Biometric and demographic data retained thereunder is minimal and the corresponding benefit to the people is large. Thus, the Aadhar program and Act do not vitiate against the concept of limited governance.
3. Surveillance is not possible under the Aadhaar regime as information is maintained in separate silos, and sufficient safeguards in terms of the extant regulations, exist to prevent merging of information and creation of personality profiles.
4. “Being unique is better than being the best”, and the mandatory nature of Aadhaar authentication for subsidies, benefits and services, guarantees that benefits reach the intended beneficiaries. It ensures that there is no duplication, abuse or fraud. This is with the caveat that only those subsidies, benefits and services which have the colour of a welfare scheme will pass muster for the purposes of mandating Aadhaar.
5. NEET, CBSE, UGC exams, scholarships, school, and the like do not qualify as "subsidies, benefits and services". Aadhaar cannot be mandated for these purposes. In any event, it is a child’s fundamental right to obtain education. Thus, the exercise of such a right cannot be conditioned on the mandatory linkage of Aadhaar.
6. For enrolling children into the Aadhaar program, parental consent is necessary, and such enrolees can opt out on attaining the age of maturity.
7. The Union has been directed to ensure that Aadhaar is not given to illegal immigrants.
8. Data retained under the Aadhaar architecture should be no longer than 6 months, and the current regulation enabling storage of data for a period of five years is unconstitutional.
9. Retention of metadata under the Aadhaar Act is impermissible and the regulations providing for the retention of metadata are unconstitutional.
10. Disclosure of information can be made pursuant to a court order only after an opportunity of hearing is given to the individual concerned.
11. The provision enabling disclosure of information on the grounds of national security is unconstitutional.
12. It has been suggested for this purpose, the surveillance authority for disclosure of information on the grounds of national security must include a judicial officer and an administrator not below the rank of Joint Secretary.
13. Aadhaar mechanism cannot be used by third-parties, body corporates, and by means of contract. Aadhaar number can only be used for a specific purpose identified by a law, and even such a law will be open to judicial scrutiny.
14. Mandatory bank and mobile SIM card linkage have been struck down, whilst mandatory PAN linkage with Aadhaar has been upheld.
15. The decision of the speaker in granting certificate for a bill to be classified as a money bill is open to judicial review.
16. Passage of Aadhaar as a money bill is constitutional.
17. Argument of exclusion of individuals, such as those who undertake intensive manual labour and whose fingers are worn, due to Aadhaar has been rejected. But he directs the Union to ensure that alternative methods are devised for people so excluded and such that no deserving person should be denied any benefit due to failure of authentication.
18. Apart from the UIDAI, a private individual can also file a compliant for a breach or violation of his privacy.
19. Education took us from thumb impression to signatures. Now, technology has brought us back to thumb impressions.

Justice Chandrachud's Dissenting View

“Our society is evolving into a knowledge economy. Data is the new oil yet it eludes the individual. The largest biometric project in the world should be scrutinised minutely. And we should be cautious that efficiency does not compromise human dignity. Can a cause for better governance ever be allowed to infringe humanitarian rights?”

1. Decision of a speaker, in classifying a bill as a money bill, is amenable to judicial review. Constitutional power is held in trust by those who exercise it on behalf and for the people, and the exercise of constitutional power cannot be immune unless there is a constitutional necessity for immunity.
2. Passage of Aadhaar as a Money Bill is a fraud on the Constitution. Rajya Sabha isn’t merely a feature of bicameralism; rather, it ensures federal bicameralism. To circumvent it means to circumvent federalism.
3. Once the biometric system is compromised, it is compromised forever.
4. While there is a legitimate state interest behind Aadhaar, that does not save the validity of the Act. There is no opt-out mechanism.
5. Aadhaar is violative of the principles of informational privacy and the right to self-determination. Lesser intrusive methods for identification ought to have been adopted. No exercise/effort taken by the Union/UIDAI to this end.
6. Rights of an individual cannot be subject to the vicissitudes of technology, neither can they be subject to an algorithm.
7. Architecture of Aadhar possesses the risk of bringing about a surveillance state.
8. Source code employed under the Aadhaar program is foreign, and that is dangerous.
9. There is an absence of independent regulatory framework; UIDAI is the regulator, executor and adjudicator.
10. Information collected under the Aadhaar program can be used for commercial profiling and also for the purposes of swaying elections.
11. One right cannot be taken away at the behest of the other.
12. Mobile phones have become a ubiquitous feature; conflation of biometric information with SIM cards is very dangerous. It is neither valid nor constitutional.
13. The Aadhaar Act is over-broad and is not effectively limited.

To conclude, it would be apt to quote possibly one of the most significant observations on the importance of a dissenting opinion (which interestingly was made in a dissenting opinion itself), “A dissent in a court of last resort… is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting Judge believes the court to have been betrayed”.

(The author is a senior advocate with the Supreme Court. He tweets at @poovayya. This is an opinion piece. Views expressed in the article are that of the author’s own. The Quint does not advocate nor is responsible for them.)