The Supreme Court on Wednesday declared the Centre’s flagship Aadhaar scheme as Constitutionally valid. The apex court’s five-judge Constitution bench headed by Chief Justice Dipak Misra said Aadhaar is meant to help benefits reach the marginalised sections of the society and takes into account the dignity of people not only from personal but also from community point of view.

The top court said Aadhaar is serving much bigger public interest and Aadhaar means unique and it is better to be unique than being best. There are three sets of judgements being pronounced on the issue.

The first of the three verdicts was pronounced by Justice A K Sikri who wrote the judgement for himself, CJI and Justice A M Khanwilkar. Justice Sikri said robust data protection regime has to be brought in place as early as possible.

He said attack on Aadhaar by petitioners is based on violation of rights under the Constitution, will lead to a surveillance State. He added there has been minimal demographic and biometric data collected by UIDAI for Aadhaar enrolment.

Justice Sikri said unique identification proof also empowers and gives identity to marginalised sections of society. There is no possibility of obtaining a duplicate Aadhaar card, he said, adding that there is sufficient defence mechanism for authentication in the Aadhaar scheme. The concept of human dignity has been enlarged in the judgement, he said.

Justice Chandrachud and Justice A Bhushan, who are part of the bench, have written their individual opinions. The verdict was pronounced on a batch of pleas challenging the constitutional validity of Aadhaar scheme and its enabling 2016 law. The bench had on May 10 reserved the verdict on the matter after a marathon hearing that went on for 38 days, spanning four-and-half months.

Supreme Court added that CBSE, NEET, UGC cannot make Aadhaar mandatory and it is not compulsory for school admissions. The apex court also said the linking of Aadhaar for opening of bank accounts and for mobile connections is not mandatory. However, it made Aadhaar mandatory for filing of IT returns and allotment of Permanent Account Number.

Justice Ashok Bhushan, in his separate verdict in the Aadhaar case, concurred with the majority three-judge judgement and said that the government and the Unique Identification Authority of India (UIDAI) were empowered to cure defects in the Aadhaar scheme. The Justice also said Aadhaar Act does not create a framework for surveillance.

He said no material was placed before the Supreme Court to indicate that there has been considerable denial of benefits of subsidies to deserving persons. He also said that biometric data contains certain personal information of citizens and the breach, if any, has to be ascertained.

In his concurring decision, Justice Bhushan said the central government has given sufficient reasons to uphold Section 7 of Aadhaar Act which deals with grant of subsidies and welfare benefits. He also agreed with the view that there was no need to link Aadhaar with mobile numbers. He also rejected the argument that revealing demographic information for Aadhaar amounts to violation of Right to Privacy, saying that an individual reveals such data for other ID proofs.

Justice Chandrachud differs

The Aadhaar Act could not have been passed as Money Bill as it amounts to a fraud on the Constitution and is liable to be struck down, Supreme Court Justice D Y Chandrachud said. "Bypassing the Rajya Sabha to pass the Aadhaar Act amounted to subterfuge and the law was liable to be struck down as being violative of Article 110 of the Constitution," he ruled.

This differs from the verdict given by Justice Bhushan who said the decision of terming Aadhaar Act as Money Bill was not open to judicial review.

Article 110 has specific grounds for Money Bill and the Aadhaar law went beyond this, Justice Chandrachud said, adding that in the current form, the Act cannot be held to be constitutional. He observed that the enactment of the Act does not save the Centre's Aadhaar scheme.

Noting that mobile phone has become an important feature of life and its seeding with Aadhaar posed a grave threat to privacy, liberty, autonomy, he favoured deletion of consumers’ Aadhaar data by the mobile service providers.

Maintaining that the Prevention of Money Laundering Act Rules proceeded on assumption that every bank account holder is a money launderer, he said the assumption that every individual who opens a bank account is a potential terrorist or a launderer is "draconian", he said.

Justice Chandrachud also said collection of data may lead to individual profiling of citizens. He said the Aadhaar programme violated informational privacy, self-determination and data protection. It has been admitted by UIDAI that it stores vital data which is violative of right to privacy, he added.

This data was vulnerable to be misused by third party and private vendors, and that too, without the consent of an individual, Justice Chandrachud maintained and said the Aadhaar project has failed to remedy the flaws in its design, leading to exclusion.

Allowing private players to use Aadhaar will lead to profiling, which could be used to ascertain the political views of citizens, the judge said. He also held that denial of social welfare measures was violation of fundamental rights of citizens.

There is no institutional responsibility of the UIDAI to protect the data of citizens, he said, adding that there was absence of a regulatory mechanism to provide robust data protection. However, he said it was now impossible to live in India without Aadhaar but it was violative of Article 14. If Aadhaar is seeded with every database, then there is chance of infringement of right to privacy, he said.

Justice Chandrachud said while Parliament possesses the right to make a law, the absence of protection leads to violation of various rights.

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