Supreme Court ruling destroys legitimacy of the Act’s stated purposes, say lawyers

The Supreme Court verdict on the Aadhaar Act, undermines the legitimacy of the Act, law experts have said.  “This project has little or no legitimacy left. Massive legislative and structural changes will be required. I will be writing on bits of the judgement in the coming weeks.”

“Today’s judgement as read out in court signals massive changes in the Aadhaar project and the Act. The legitimacy of its stated purposes is destroyed. Even the majority signals significant concern by reading down portions.”

The Supreme Court today upheld the validity of the Aadhaar Act and scheme by a 4:1 majority. It said that the government cannot compel individuals to use Aadhaar as the sole identification tool. The court also ruled that private entities and corporates cannot hoard Aadhaar data.

The judgment was pronounced by a Bench of Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan. Justice Chandrachud dissented from the majority.

Supreme Court has noted that Aadhaar empowers the marginalised society. Justice Chandrachud although has held the Aadhaar Act as unconstitutional on the basis of money bill, has also gone into separate provisions and the project. However he held that Aadhaar cannot have been a money bill. Not even Section 7. Passing a Bill which is not a money bill as a money bill a subterfuge and a fraud on the constitution.

This is a dissent from Justice Sikri’s view.

Aadhaar cannot be mandated for opening of bank accounts, says Supreme Court. Aadhaar cannot be mandatory for mobile connections; DoT notification to that effect unconstitutional. The Supreme Court said that UGC, which has made it mandatory cannot happen. “Enrollment of children, consent of parents is essential. Aadhaar for school education would not be necessary coz it is neither welfare or subsidy.”

Supreme Court introduces a significant voluntary component to Aadhaar judgement. Justice AK Sikri has said struck down Section 47, Section 33, Section 57, Section 33(1) has to be read down that individual afforded hearing. 33(2)- Information shared for national security struck down. Section 57 that includes body corporates is unconstitutional. Sikri said: “Enrolment of children only with parental consent. They should be given an option to exit on attaining majority.”

Justice AK Sikri said, “We follow the “larger public interest” as against the “compelling public state interest” test. Respect grounded in human dignity is exposited in the judgment. Also discussed is dignity not only in reference to individual but also dignity within the community. Question on whether strict scrutiny or just fair and reasonable standard to be adopted in testing constitutionality of laws. Says Puttaswamy leaves that open. And that this judgment had adopted the latter standard.”

Justice Sikri reads out the majority judgment in the case. “The unique identification proof also empowers and gives identity to marginalised sections of the society The unique identification proof also empowers and gives identity to marginalised sections of the society.”

Justice Sikri started his Aadhaar judgment by saying, “It is better to be unique than the best.” He further added that Aadhaar has become the most talked about expression in the recent years.

He said it is better to be unique than the best. “Aadhaar has become the most talked about expression in the recent years,” he said.

5-judge Supreme Court Bench assembles in the top court with Justice AK Sikri pronouncing his judgment now.

The Aadhaar verdict, at the least, have a major impact on the amendments made to the Aadhaar Act via the Bill, in relation to privacy and data protection practices used for Aadhaar itself. Further, the court’s rulings with respect to data protection in relation to Aadhaar will also help determine what practices are constitutional under the Bill within the terms of the judgment.

The five-judge Constitutional bench of Supreme Court will pronounce the verdict at 10.30 am. During the last hearing, lawyers appearing for the petitioners told the Supreme Court that over the time as Aadhaar authenticating becomes ubiquitous, tracking and profiling will become more comprehensive.

The arguments against Aadhaar began with the assertion that data collection was happening in the absence of a law, that personnel were not qualified to collect and handle sensitive data and that the biometric process itself was unreliable. Fingerprints can be cloned and iris scanners bypassed.

The Supreme Court will pronounce its crucial verdict on a batch of pleas challenging the constitutional validity of Centre’s flagship Aadhaar scheme and its enabling 2016 law. While the first petition challenging Aadhaar was filed in 2012, the process for this case was kicked off by a October 2015 judgment by the Supreme Court which allowed the use of Aadhaar in a number of government schemes.

The judgment specifically maintained that the “purely voluntary nature” of Aadhaar would continue till the court decided one way or another on the validity of the system through a constitution bench.

In 2012, Justice Puttaswamy had filed a petition in the Supreme Court saying that the government cannot indirectly implement Aadhaar without the legislative passage of the National ID Bill.

Aadhaar is one of the most crucial verdicts expected this year. This week being Dipak Misra’s last week as the Chief Justice of India, the verdict holds historical importance as well. One of the lawyers appearing for the petitioners, Aapar Gupta tweeted and said, “Irrespective of the verdict in tomorrow’s Aadhaar judgement we will continue to negotiate the power imbalances of technology. The constitution and the courts will be key players in revitalising doctrine for the development of digital rights in India.”

The Aadhaar litigation in Supreme Court has now spanned over 6 years. At least, 26 Judges have heard the matter at various points of time. The verdict is expected to be read out at around 10.30 am on Wednesday.

A five-judge constitution bench headed by Chief Justice Dipak Misra had on 10 May reserved the verdict on the matter after a marathon hearing that went on for 38 days, spanning four-and-half months.

As many as 31 petitions, including one by former high court judge KS Puttaswamy, have been filed in the matter.

When the judgment was reserved by the court, Attorney General KK Venugopal had told the bench, which also comprised Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan, that this matter had become the “second longest” one in terms of days of hearing after the historic Kesavananda Bharati case of 1973.

The Kesavananda Bharati case, which was heard by a 13-judge bench, by a majority of 7:6 had propounded the doctrine of the ‘Basic Structure and of the Constitution’. It had held that the amendments which may affect this structure were subject to judicial review.

A battery of senior lawyers, including Shyam Divan, Gopal Subramaniam, Kapil Sibal, P Chidambaram, Arvind Datar, KV Vishwanath, Anand Grover, Sajan Poovayya and a few others, had argued on behalf of the petitioners opposing the Aadhaar Scheme on various grounds.

Besides the former high court judge, the top lawyers argued for petitioners, who included Magsaysay awardee Shanta Sinha, feminist researcher Kalyani Sen Menon, social activists Aruna Roy, Nikhil De, Nachiket Udupa and CPI leader Binoy Visman.

A key argument against the Aadhaar scheme was that it was violative of the nine-judge bench verdict that had held that Right to Privacy is a fundamental right under the Constitution.

The Centre, the Unique Identification Authority of India (UIDAI), the governments of Maharashtra and Gujarat and the RBI had argued in favour of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits And Services) Act, 2016 and were represented by the Attorney General, Additional Solicitor General Tushar Mehta, senior advocates Rakesh Dwivedi and Jayant Bhushan and lawyer Zoheb Hossain.

During the arguments, the Centre had strongly defended its decision to seed Aadhaar numbers with mobile phones, telling the top court that it could have been hauled up for contempt if the verification of mobile users was not undertaken by it.

However, the court had said that the government had misinterpreted its order and used it as a “tool” to make Aadhaar mandatory for mobile users.

The court had also not agreed prima facie with the government’s contention that the Aadhaar law was correctly termed as a Money Bill by the Lok Sabha Speaker as it dealt with “targetted delivery of subsidies” for which funds came from the Consolidated Fund of India

The counsel for one of the petitioners had termed Aadhaar as “an electronic leash” and said that the government could completely destroy an individual by “switching off” the 12-digit unique identifier number.

On the other hand, the Centre had said that the law was valid and allowed minimal invasion to ensure the right to life of millions of Indians by ensuring seamless delivery of subsidies, benefits and services to the poorest of poor.