Author: Mansi Singh, V year of B.A.,LL.B. from Gitarattan International Business School (Affiliated to Guru Gobind Singh Indraprastha University)
BACKGROUND OF THE CASE
The Aadhaar project was initiated in 2009 to curb the problems of Duplicate ID documents. In 2008, the then Planning Commission decided to launch UIDAI (The Unique Identification Authority of India). Nandan Nilikani, CO Founder of Infosys appointed as its first Chairman.
The first 12-digit Aadhaar Number was issued on September 29, 2010. A biometric-based Unique Identity Number will be helpfulfor identification of eligible persons for Welfare schemes. It was considered as the most reliable proof of identity.
The project was initially launched as voluntary way of improving welfare service delivery but later in practice, the government made it mandatory for no. of services and forcing residents to sign up for Aadhaar to get access to things they were already due.
In 2016, Parliament Enacted The Aadhaar Act 2016 to provide legislative backing to the project. This Act gave permission to use Aadhaar for authentication purposes by the Central and State government as well as private bodies and persons.
Government made Aadhaar mandatory for government projects such as LPG subsidies and mid-day meal scheme. In 2017, Parliament passed the Finance Act to amend the Income Tax Act, 1961 and made Aadhaar mandatory for filing Income Tax Returns and applying for PAN. In the meantime, Aadhaar bill was passed as money bill in the parliament. Since money bill does not need be introduce in Rajya Sabha but only in Lok Sabha, helped in passing of the Act. The Act was challenged in the Supreme Court. The first petition was filed in 2012.
ISSUES RAISED
(1)Whether the Aadhaar project is unconstitutional on the ground that it creates a surveillance state?
The Supreme Court stated that Aadhaar does not tend to create any surveillance. It was held that since during the enrolment process, minimal biometric data in the form of iris and fingerprint is collected and UIDAI does not collect location or details, hence its purpose is blind. The information collected is minimal. The authentication process was not exposed to the internet. He authority also mandated using registered devices for authentication requests.
(2) What is the magnitude of Protection that need to be accorded to collection, Storage and usage of biometric data?
Sec 2(D) which pertains to Authentication Records, such records would not include Metadata as mentioned in Regulation 26(C) of the Aadhaar (Authentication) Regulations, 2016. Therefore, the above provision has been struck down by the court. One cannot store the data beyond the period of six months. Hence,Regulation 27 of Aadhaar (Authentication) Regulations, 2016 provides a data for a period of only five years.
(3) Whether the collection of Identity Data without Adequate Safeguards Interferes with the fundamental Right to Privacy Protected under Article 21 of the Constitution?
Violation of Right to Privacy cannot be granted in each and very matters involving individuals. Therefore, the matters involving a reasonable expectation of privacy will fall under the protection of Article 21.
The SC relied on the Triple Test.
(i) Existence of Law – Backed by the Statute (Aadhaar Act)
(ii) A Legitimate State Interest – To ensure that social benefit Schemes reach the deserving community.
(iii) Test of proportionality – Balances the professed benefits of Aadhaar and the potential threat it carries to the Fundamental Right to Privacy.
The SC held that third test has also been met as the purpose of the Act is to ensure Deserving Beneficiaries of welfare Schemes are correctly identified. It also achieves the balancing of two competing Fundamental Rights, Right to Privacy on the one hand and Right to food, Shelter and Employment on the other.
(4) Whether Aadhaar can be made mandatory for those Government Benefits and Services that citizens are entitled under the law?
The failure to establish identity of an individual has proved to be a major hindrance for successful implementation of those programmes. It was becoming difficult to ensure that subsidies, benefits and services reach the unintended beneficiaries.
(5) Does it violate a person’s Fundamental Rights such as their Right to Practice any profession, Trade or Business and Right to Equality discriminates between individual and non-individual assesses.
It was held that it does no violates Fundamental Rights to Equality or the Fundamental Right to Practice one’s Profession or Trade. Aadhaar is perceived as the Best Method of eliminating Duplicate PANs and therefore there is reasonable ground of linking the PAN Database with Aadhar.
Sec 57 of the Aadhaar Act
“Nothing contained in this Act shall prevent the use of Aadhaar no. for establishing the identity of an individual for any purpose, whether by the Sate or anybody corporate pr person, pursuant to any law, for the time being in force, or any contract to this effect”
It can be used for establishing the identity of an individual ‘for any purpose’. Such law should be subjected to judicial scrutiny. This part of provision which enables body corporate between the individual and such body corporate or Persons would impinge upon the Right to Privacy of such individuals.
Filing Returns
Sec 139AA of IT Act makes Aadhaar Mandatory for filing IT Returns and applying for PAN.
As per triple test it was held that linking PAN with Aadhaar will not violate the Right to privacy therefore it was mandatory.
Linking of Bank Accounts
By way of 2017Amendment to Prevention of Money Laundering Act Rules, 2005Linking of Bank Accounts and Other Financial Instruments with Aadhaar were made mandatory.
SC held that it does not stand the proportionality test because just for preventing Money Laundering, there cannot be such a provision targeting every resident as a suspicious person, which is seen as disproportionate. The amendment was declared unconstitutional as it covers banking details and therefore violates the Right to Privacy.
Section 7
According to Section 7 of the Aadhaar Act 2016, any Individual who is desirous of availing any subsidy, Benefit or Services for which the Expenditure is incurred form.
SC stated that Aadhaar enrolment is of voluntary nature However, it becomes compulsory for those who seeks to receive any subsidy, benefit or service under the welfare scheme of the govt. expenditure whereof is to be met out of consolidated fund of India.
Ratio of the Judgment passed was – 4:1 as Justice D.Y.Chandrachud gave dissenting judgment stating ‘ The Aadhaar Act, 2016 is declared unconstitutional for failing to meet the necessary requirements to have been certified as a Money Bill under A 110(1). Adequate norms must be laid down for each step from the collection to retention of biometric data based on informed consent, individuals must be given the right to access, correct and delete data. An opt-out option should be necessarily provided.
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