The Judgment dated 26.09.2018 by the Hon’ble Supreme Court was highly anticipated by about 130 Crore citizens of this country who are affected parties. The Hon’ble Supreme Court after much deliberation on the issue delivered three judgments. One by J. Sikri, CJI Dipak Misra and J. Khanwilkar concur with him. Other two judgments are by J. Chandrachud and J. Bhushan. Given that the entire set of Judgment runs into over 1400 pages, the present write-up is just identifying the important highlights of the majority judgment now applicable to the people.
What has been upheld-
Concurs with a vehement defense of Government that Aadhaar could have been passed as a money bill.
Aadhar as a system for the delivery of subsidies has been held as valid and constitutional
139AA OF Income Tax Act upheld. It is mandatory quoting of Aadhaar / Enrolment ID of Aadhaar application form, for filing of return of income and for making an application for allotment of Permanent Account Number.
What has been struck down-
Strikes down section 54 of Aadhaar Act, 2016 which says private body corporates can seek Aadhaar data as unconstitutional.
It is simply difficult to care for the profile of a person on the basis of data stored in CIDR. Authentication data should not be stored beyond 6 months. Current rule that it can be archived for 5 years struck down
PMLA Rule providing for mandatory Bank account and Aadhaar bank linking is struck down as unconstitutional. Does not satisfy the test of proportionality.
Aadhaar linkage to phones to obtain Sim Card from Telecos struck down as unconstitutional.
Section 47 struck down. Any individuals must be allowed to file complaints.
Section 33(1) permitting disclosure of Aadhaar information on orders of District Judge read down to enable opportunity of hearing to the owner of data
CBSE NET cannot make Aadhaar mandatory. Enrolment of children only with parental consent. They should be given an option to exit on attaining majority.
Data obtained is very very minimal, the benefits especially to marginalised is large
Adequate protection measures are there to protect data.
The government must take strong steps to prevent illegal immigrants from obtaining Aadhaar.
It is interesting the note that the Hon’ble Supreme Court has taken into account the time, cost and effort that has gone into setting up of the Aadhar System. Its is also evident that the Judges have kept in mind that the Aadhar as a unique ID for subsidiary delivery will ensure maximum reach with minimum effort and perform the utmost important function of plugging the leakages by eliminating the middleman. The linking of PAN Card to file IT Returns also makes sense as the aim is to curb black money usage in the economy with respect to individuals.
On the other hand, the Hon’ble Supreme Court has been reluctant to give any sort of access to private parties of data belonging to the General Public especially in regard to the judgment by this very Court declaring Right to Privacy as a fundamental right. So companies, banks and telecommunications among other private players have been completely excluded from demanding of anyone their personal details.
What the majority judgment of the Hon’ble Supreme Court has remained silent upon is the concerns of the civil society in terms of lack of safeguards given that the software codes of the systems of Aadhar are made by foreign agencies and there have been time and again various instances of identity theft, siphoning of funds, hacking of data from government portals which is a matter of great concern duly highlighted by Justice Chandrachud in his dissenting judgment.
All in all, the majority judgment in balanced in terms of the idea of the government but Aadhar still doesn’t quite live up to the standards of safety and security as envisaged by the members of civil society. Much more can be done in terms of utmost protection of privacy right of the people which is now a fundamental right. Given that the benefit to the mariginalized is too much to scrap the idea altogether, an endeavour must be made to ensure evolution of the Aadhar Act to include the dangers highlighted by experts on the issue of data theft and violation of privacy rights of the individuals in the present scheme itself.