The Supreme Court on Wednesday upheld the constitutional validity of the Aadhaar scheme in a 4:1 majority verdict but limited its scope, ruling that it cannot be made mandatory for bank accounts, mobile connections or school admissions.
The majority judgment held the Aadhaar Act did not violate individuals’ right to privacy and cleared the use of Aadhaar for welfare schemes, income-tax returns and the allotment of the permanent account number (PAN).
Headed by Chief Justice Dipak Misra, the bench included Justices A.K. Sikri, Ashok Bhushan, A.M. Khanwilkar and D.Y. Chandrachud. Justice Chandrachud delivered a dissenting judgment, ruling that the Aadhaar Act’s passage as a money bill amounted to a fraud on the Constitution. The majority judgment prevails.
The following are answers to some of your questions:
Q: If I don’t have Aadhaar now, should I take it?
A: Yes, you must have the Aadhaar number to file income-tax returns because the PAN must be linked to the Aadhaar number. The Aadhaar number is also needed to access subsidies funded from the Consolidated Fund of India, from which government expenditure is made. The card is also needed to access scholarships.
But no child can be denied any subsidy if he or she does not have the Aadhaar number.
Q: Does that mean I don’t need Aadhaar for anything other than getting PAN, filing tax returns and accessing subsidies and scholarships?
A: No, you don’t.
Q: What about banking and phones?
A: No, banks and phone companies cannot make Aadhaar mandatory any more. Neither can schools insist on the card for admissions nor councils that conduct exams such as the NEET, the medical entrance test. But some banks are already thinking of making Aadhaar voluntary for speedier service, which can become controversial.
Q: Did the court strike down any section of the Aadhaar Act?
A: Yes. Section 57 and Section 33(2) have been struck down and Section 33(1) “read down”.
Section 57 permitted private entities like telecom companies to demand and use Aadhaar data. They can no longer do so.
Section 33(2) allowed disclosure of an individual’s Aadhaar data on the ground of national security if an officer not below the rank of a joint secretary gave the directive.
Section 33(1) allowed the UIDAI (the Aadhaar issuer) to disclose information if a judicial officer not junior to a district judge ordered it to. But the Supreme Court on Wednesday “read down” the provision. “Reading down” means diluting the rigours, instead of completely striking it down. The court has mandated that a citizen should be heard by the judge before issuing the order.
Q: What about my data already forced out of me by banks and phone companies? Will that be destroyed?
A: Logic demands that such data should be destroyed since the entities are not entitled to ask for them. It is not clear yet whether the 1,448-page judgment has a specific reference to this. But the court has said authentication data — which cover details of financial transactions — cannot be stored by anyone for more than six months.
Q: Can I get my phone de-linked?
A: You can. The regulations say that “the Aadhaar number holder may, at any time, revoke consent given to a KUA for storing his e-KYC data or for sharing it with third parties, and upon such revocation, the KUA shall delete the e-KYC (electronic know your customer) data and cease any further sharing.
A KUA is an e-KYC User Agency, the requesting entity that uses the e-KYC authentication facility provided by the UIDAI. You can check with the customer care centre of your service provider how to go about it.
Q: Now, the big question: who is the winner?
A: A clear winner is privacy although the court said “dignity to the marginalised outweighs privacy”.
Q: What about political winners?
A: The government and the Opposition have claimed victory while activists have expressed disappointment with subsidies continuing to be linked to Aadhaar.
The Congress had envisaged targeted subsidies through Aadhaar through direct benefit transfer. The Narendra Modi government linked it to all bank accounts and phone numbers besides making it mandatory for a host of other services that did not involve any disbursement of cash.
The Congress can claim that its version of voluntary data collection has been restored. But the Modi government can point out that its decision to link Aadhaar with PAN to check black money has been endorsed by the court.
Q: OK, let me put it another way. Who has lost more?
A: The Modi government.
Q: Why?
A: Most of the provisions of Aadhaar were the brainchild of UPA II, which created the UIDAI in 2009 through an executive order. But it was the Modi government that had given a statutory cover through a bill in 2016. Had the Modi government wanted to, it could have done away with Section 57 then itself.
Look at the other rules that have been struck down. All had been imposed by the Modi government through executive orders.
Telecom: The telecom department had issued an order on August 16, 2016, allowing mobile phone companies to use the Aadhaar electronic “know your customer” service. On March 23, 2017, the government had issued another order asking mobile phone companies to undertake e-KYC re-verification. The Modi government had then cited a month-old Supreme Court order but others had said it was merely an observation by a bench and not an order.
Banks: On June 1, 2017, the Centre had introduced a provision in the anti-money laundering law that empowered banks to demand Aadhaar numbers.
NEET: On December 3, 2017, the CBSE made Aadhaar mandatory for NEET candidates in 2018. The Supreme Court later stayed the order and extended the relief to other exams. From now on, Aadhaar is not needed to take the tests.
Death certificate: In 2017, the Union home ministry said Aadhaar would be “required” to register deaths. The government later said it was not mandatory but in effect it had become a requirement. Now, it cannot be imposed.
The Modi government has not given up yet. Finance minister Arun Jaitley, while terming the judgment “historic”, said: “Let us first read the judgment. There are two-to-three prohibited areas. Are they because they are totally prohibited or are they because they need legal backing?”