Aadhar Verdict: SC upholds its Constitutional validity, says it does not infringe on an individual’s right to privacy

The Supreme Court of India has said that the Aadhar Act 2016 is constitutionally valid, the Indian Express reported. Nevertheless, the apex court has struck down some of its provisions by a 4:1 majority. The SC stated that an individual’s rights could not be denied on the ground of lack of unique ID. While the majority judgement, written by Justice AK Sikri in concurrence with CJI Dipak Misra and Justice AM Khanwilkar, upheld seeding of PAN with Aadhaar, it set aside linking Aadhaar to bank accounts and mobile phone numbers. In a dissenting judgement, Justice DY Chandrachud said the Aadhaar Act could not have been passed as a Money Bill as it amounted to a fraud on the Constitution and was liable to be struck down, noted the report.

The SC has also struck down Sections 33 (2), 47 and 57 of the Aadhaar Act. Section 33 refers to disclosure of information in certain cases. Also, the apex court has read down Section 33 (1), while striking down 33 (2) as well. Section 33 (1) allows disclosure of information including identity and authentication records, if ordered by a court not inferior to that of District Judge. Reading down this sub-section, the SC has said that individuals should be given the opportunity of hearing. Section 33 (2) allows identity and authentication data to be disclosed in the interest of national security on direction of an officer not below the rank of Joint Secretary to the Government of India.

Section 33(2) reads: “Section 33 (1) Nothing contained in sub-section (2) or sub-section (5) of section 28 or sub-section (2) of section 29 shall apply in respect of any disclosure of information, including identity information or authentication records, made pursuant to an order of a court not inferior to that of a District Judge:

This sub-section reads, “… shall apply in respect of any disclosure of information, including identity information or authentication of records, made in the interest of national security in pursuance of a direction of an officer not below the rank of Joint Secretary to the Government of India specially authorised in this behalf by an order of the Central Government:

Provided that every direction issued under this sub-section, shall be reviewed by an Oversight Committee consisting of the Cabinet Secretary and the Secretaries to the Government of India in the Department of Legal Affairs and the Department of Electronics and Information Technology, before it takes effect:

Provided further that any direction issued under this sub-section shall be valid for a period of three months from the date of its issue, which may be extended for a further period of three months after the review by the Oversight Committee.”

Section 47 of the Aadhaar Act

Section 47 of the Aadhaar Act refers to cognizance of offences. Under this Section, no court is allowed to take cognizance of any offence punishable under this Act, except on a complaint made by the authority of officer or person authorised by it. The Section also disallows courts below that of a Chief Metropolitan Magistrate or a Chief Judicial Magistrate to try any offence punishable under this Act.

Section 57 of Aadhaar Act

Section 57 of the Aadhaar Act refers to the use of Aadhaar data by any “body corporate or person” to establish the identity of an individual. Justice Sikri, in his judgment, found this section to be unconstitutional. It was under this provision that private companies like Paytm and Airtel Payments Bank sought Aadhaar details from customers.

Section 57 reads: “Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect: Provided that the use of Aadhaar number under this section shall be subject to the procedure and obligations under section 8 and Chapter VI.” Reading down Section 2(d) of the Aadhaar Act, the court also ruled that authentication record should not include metadata. Records cannot be kept beyond the period of six months.

Not Mandatory

Linking Aadhar to Mobile number, digital wallets are not mandatory, the SC observed. According to the verdict, Aadhaar is not reuired for Paytm, Amazon Pay and others, noted the report. The customers who had not got an Aadhaar number till now, and were required to submit one in order to get a new mobile connection or continue using their current mobile connections, will see this verdict as a relief.

With the Supreme Court verdict, telecom service providers like Airtel, Reliance Jio, Vodafone and others can no longer force users to link their Aadhaar card to their current mobile number. It also means that not linking Aadhaar to mobile phone numbers will no longer result in telecom services being stopped for the customer. Furthermore, the SC also declared Section 57 of Aadhar Act as ‘unconstitutional’ and struck it down, while Section 57 of Aadhaar Act talked about how private firms could also access Aadhaar data. This also means that digital wallets like Paytm or Amazon Pay Balance cannot demand Aadhaar data from customers in order to to do a verification and allow them to continue using the services.

Citing UIDAI website, the report said that when it comes to Aadhaar fingerprint authentication, Reliance Jio has performed the most with 62 million this month, followed by Airtel which has 44 million. Vodafone and Idea follow the two other in terms of Aadhaar fingerprint authentication. Coming to Paytm, it has done a total of 98 million authentications on Aadhaar.

With the Aadhaar verdict from the Supreme Court, what it means is that the card number is no longer compulsory for everything, like linking it to private bank accounts, digital wallets like Paytm, or even Amazon which has been asking for Aadhaar in order to verify users for Amazon Pay Balance.

The Supreme Court verdict however, does not make it clear whether the companies which have accessed all the Aadhaar data till date, will now be required to delete this data. It is also not clear whether users can go to these companies are demand that they delete Aadhaar related data.

In his judgement, Justice Chandrachud had also said that seeding mobile phones with Aadhaar data poses grave danger to individual liberty. He has instructed in his judgement that telecom operators should delete all data they have collected from users, added the report.