Justice K.S. Puttaswamy (Retd.) and another versus Union of India and others
On September 26, 2018, a five-judge constitution bench of the Supreme Court of India (a bench of not less than five judges that deliberates substantive questions of law in relation to the Constitutional text) gave this judgement on a string of writ petitions that questioned the constitutional validity of Aadhaar. The bench consisted of Chief Justice Dipak Misra, and Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan.
Justice A.K. Sikri delivered the majority judgement (on behalf of himself, the Chief Justice and Justice A.M. Khanwilkar), which was supported by Justice Ashok Bhushan’s concurring judgement. Justice D.Y. Chandrachud held the dissenting opinion.
court’s verdict was sharply divided. While the majority judgement upheld
Aadhaar’s constitutionality and struck down some provisions of the Aadhaar
Act, Justice D.Y. Chandrachud’s dissenting judgement found the entire Act
unconstitutional because of procedural irregularities in the passage of the law
and because he was of the view that it violated the right to privacy.
The majority judgement also said that linking Aadhaar with bank accounts, mobile phones and school admissions was unconstitutional and that linking PAN cards with Aadhaar was no longer mandatory.
Which provisions of the Aadhaar Act does the verdict strike down?
The majority judgement struck down certain provisions and read down others. Section 57, which allowed the state and “any body corporate or person” to use Aadhaar information to authenticate identity, was found to be unconstitutional. As was Section 33(2), which allowed the disclosure of information in the interest of national security by an officer higher than the joint secretary to the government of India.
Section 47, which said that complaints about offences under the Aadhaar Act could only be filed by the Unique Identification Authority of India (UIDAI), was also struck down. Importantly, Regulation 27(1) of the Aadhaar (Authentication) Regulations, 2016, which allows authentication records to be kept for a period of five years, was struck down. The majority judgement said that these records could not be kept beyond a period of six months.
What does the verdict say about Aadhaar and surveillance?
The majority judgement said that “the threat to real time surveillance and profiling may be far-fetched.” It added that “minimal biometric information” was collected during the Aadhaar enrolment process, the information collected remained in “silos” and that “merging of silos [was] prohibited.”
In his response, Justice D.Y. Chandrachud said: “When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos.” This would enable anyone with access to this information to reconstruct an individual’s life, which was contrary to the right to privacy and meant potential surveillance, he said.
What does the verdict say about Aadhaar and privacy?
The majority judgement said that “enrolment in Aadhaar of the unprivileged and marginalised section[s] of the society, in order to avail the fruits of welfare schemes of the Government, actually amounts to empowering these persons.” It said that Aadhaar not only gave them a unique identity but also a life of dignity. To this, it added that the Aadhaar Act was backed by legislation, its aim was to empower the marginalised (a ‘legitimate state aim’), and it made minimal inroads into privacy.
Justice D.Y. Chandrachud said that the aim of the state to provide benefits to the marginalised “can be fulfilled by adopting less intrusive measures as opposed to the mandatory enforcement of the Aadhaar scheme as the sole repository of identification.” Further, he said that the state had failed to satisfy the Court that the delivery of subsidies (and benefits and services) promised by the Aadhaar Act should involve giving up the right to “individual autonomy, data protection and dignity,” that is, the right to privacy. He emphasised that “one right cannot be taken away at the behest of the other.”
What does the verdict say about Aadhaar and exclusion of the poor from subsidies, benefits and services?
The petitioners argued that poor and marginalised people had been denied access to subsidies, benefits and services because of Aadhaar authentification failures. (See also Aadhaar: the system wins, the people lose) However, the majority judgement relied on the UIDAI’s submission that biometric accuracy was 99.76 per cent and recommended that the loopholes in the (Aadhaar) system be plugged rather than axing the system altogether. It said: “If the Aadhaar project is shelved, 99.76 per cent beneficiaries are going to suffer. Would it not lead to their exclusion?”
Chandrachud countered this: “Denial of benefits arising out of any social security scheme which promotes socio-economic rights of citizens is violative of human dignity and impermissible under our constitutional scheme.” He added that the government should not make Aadhaar mandatory to access benefits.
Factoids and Focus by Vasundhara Kamath.
Chief Justice Dipak Misra, and Justices A.K. Sikri, A.M. Khanwilkar, D.Y. Chandrachud and Ashok Bhushan
26 Sep, 2018