Supreme Court in a majority opinion upholds constitutional validity of Aadhaar but strikes down certain provisions including its linking with bank accounts, mobile phones and school admissions.
The majority view by Chief Justice of India Dipak Misra and Justices A.K. Sikri and A.M. Khanwilkar declared Aadhaar a “document of empowerment.” An “unparalleled” identity proof. A document that cannot be duplicated unlike PAN, ration card, and passport.
Justice D.Y. Chandrachud wrote a sharp dissent, declaring Aadhaar unconstitutional.
Upholding the passage of the Aadhaar Act as a Money Bill, the Supreme Court said neither were individuals profiled nor their movements traced when Aadhaar was used to avail government benefits under Section 7 of the Aadhaar Act of 2016. The statute only sought “minimal” biometric information, and this did not amount to invasion of privacy.
The majority opinion upheld the PAN-Aadhaar linkage, but declared linking Aadhaar with bank accounts and mobile SIM cards unconstitutional.
The court insulated children from the Aadhaar regime. The card was not necessary for children aged between six and 14 under the Sarva Shiksha Abhiyan as right to education was a fundamental right. Statutory bodies like CBSE and UGC cannot ask students to produce their Aadhaar cards for examinations like NEET and JEE. Permission of parents and guardians was a must before enrolling children into Aadhaar. Children once they attained the age of majority could opt out of Aadhaar.
Section 57 of the Aadhar Act revoked. This section of the Aadhaar Act provided that private companies could ask consumers for Aadhaar details for identification purposes. The court’s judgement means that private bodies like telecom companies, e-commerce firms, private banks and other such firms cannot ask for biometric and other data from consumers for their services.
Section 33(2) of Aadhar Act revoked. This provision in the Aadhaar Act allowed sharing of data with security agencies on the ground of national security.
Section 47 of the Aadhaar Act struck down. This section allowed only the government to complain in case of theft of Aadhaar data. Now the individual too can file a complaint.
Striking down of Regulation 27(1) and reducing storage period of authentication data from five years to six months will ensure personal data is not misused. Amending Regulation 26 and making metabase relating to a transaction impermissible will prevent fake profiling of an Aadhaar holder. Aadhaar authentication data cannot be stored for more than six months.
The SC asked the Centre to bring a robust law for data protection as soon as possible.
Here are the services that will require Aadhaar and the ones that will not:
Linking of Aadhaar with IT returns, PAN card – Mandatory. The SC, upholding Section 139AA of the Income Tax Act, has made it mandatory to link Aadhaar to Income Tax returns and PAN card.
Linking of Aadhaar with mobile numbers – Not mandatory. It is no longer mandatory to link your Aadhaar to your mobile numbers. Private companies cannot force you to link your Aadhaar as the SC read down Section 57 of the Act which allowed the use of Aadhaar number for establishing the identity of an individual for any purpose.
Linking of Aadhaar with bank accounts – Not mandatory. Banks cannot force you to link your bank accounts with your Aadhaar number. However, they will automatically be linked since your PAN cards, which need to be linked to Aadhaar, are linked to your bank accounts.
Providing Aadhaar details for school admissions – Not mandatory. The SC stated that admissions cannot be denied to children who are not able to provide Aadhaar card details. “Aadhaar can’t also be insisted for admission to schools. For the enrolment of children, the consent of parents would be essential,” Justice Sikri stated in the judgement.
For availing government subsidies and welfare schemes – Mandatory. Justice AK Sikri observed that Aadhaar is meant to help government benefits to reach marginalised sections of society. It is currently mandatory for MGNREGA, PDS and LPG subsidies.
For entrance exams – Not mandatory. The Supreme Court stated that the CBSE, NEET and UGC making Aadhaar mandatory for their exams is “bad” and they cannot do so.
(In an emphatic dissent from the majority, Justice Chandrachud has held the entire Aadhar project to be unconstitutional. The very act of passing the Aadhaar Act 2016 as a money bill was held to be unconstitutional by Justice Chandrachud, dissenting from the majority view expressed through Justice Sikri’s judgment that there was no impropriety in introducing it as money bill. “The passing Aadhaar Act as money bill is a fraud on the constitution”, Justice Chandrachud observed. The decision of Speaker to classify a bill as money bill is amenable to judicial review.)