Judgement was finally delivered today, 101 days after the final hearing, in the matter of K S Puttaswamy v. Union of India [W.P.(C) No. 494/2012] and 28 other petitions tagged along with it. They challenged the overall constitutional validity of the Aadhaar on various grounds.
I had compiled tweets from Gautam Bhatia, Prasanna and SFLC to understand how the Aadhaar hearing unfolded in the Supreme court which you can read below. This post is the closure of the same
- Jan: Day 1 (17/1/18)| Day 2 (18/01/18) | Day 3 (23/01/18) | Day 4 (24/1/18) | Day 5 (30/1/18)
- Feb: Day 6 (1/2/18) | Day 7 (6/2/18) | Day 8 (7/2/18) | Day 9 (8/2/18) | Day 10 (13/2/18) | Day 11 (20/2/18) | Day 12 (21/2/18) | Day 13 (22/2/18)
- Mar: Day 14 (6/3/18) | Day 15 (7/3/18) | Day 16 (13/3/18) | Day 17 (14/3/18) | Day 18 (15/3/18) | Day 19 (20/3/18) | Day 20 (21/3/18) | Day 21 (22/3/18) | Day 22 (27/3/18)
- Apr: Day 23 (3/4/18) | Day 24 (4/4/18) | Day 25 (5/4/18) | Day 26 (10/4/18) | Day 27 (11/4/18) | Day 28 (12/4/18) | Day 29 (14/4/18) | Day 30 (18/4/18) | Day 31 (19/4/18) | Day 32 (24/4/18) | Day 33 (24/4/18) | Day 34 (26/4/18)
- May: Day 35 (2/5/18) | Day 36 (3/5/18) | Day 37 (9/5/19) | Day 38 (10/5/18)
- You can read the Aadhaar Act here as the judgements and tweets just refer to the number of sections.
- Bench has assembled. Judgment is voluminous.
- There are three judgements. First judgement by Justice Sikri. CJI and Justice Khanwilkar concur with him. Other two judgments are written separately by Justice DY Chandrachud and Justice Bhushan.
- Justice Sikri: It is better to be unique than the best. Being unique is the basis of Aadhaar. Talks about how Aadhaar is the most talked about identification system in the world.
- Extolling the virtues of “uniqueness”. How the word Aadhaar has completely dislodged the hindi dictionary meaning for Aadhaar by the Id provided by UIDAI.
- Structure of Act reveals UIDAI is a statutory body for assigning unique numbers and authentication. Uniqueness based on submission of demographic and biometric data submission to UIDAI.
- Reads out the summary of the arguments made by the petitioners and the respondents.
- Challenges on the ground of FR violation and violation of constitutional values. Violation of privacy. Surveillance state.
- Response of Govt of India based on minimality of data collected. Aadhaar enrolment process foolproof. Same foolproofness at the time of authentication.
- Response by GoI also claims authentication is on minimality of data…not even purpose is collected. Profiling not possible. Cites the ppt by Dr. Pandey.
- The court has observed that minimal data is collected for the purposes of establishing identity under Aadhaar. There’s a fundamental difference between Aadhaar and other identity proofs. Aadhaar eliminates any chance of de-duplication.
- Aadhaar remains secure with the CIDR. Such a system has been unparalleled.
- It empowers marginalized sections of the society. They can claim various privileges with the use of Aadhaar.
- Validity of Act is also tested on manifest arbitrariness challenge also which was rejected in Binoy Viswam
- On the doctrine of proportionality and the right to privacy, the important part of the challenge. Says the judgment discusses privacy case extensively and follows it.
- Right to live with dignity is part of right to privacy. We’ve discussed the test of privacy, dignity and proportionality. Question is whether court should apply strict scrutiny standards or fair or reasonable standards? Says Puttaswamy leaves that open.
- We’ve applied the fair and reasonable standards.
- Human dignity is based on socio economic rights. In the present case, we’ve enlarged the scope of human dignity to include dignity within the community.
- We follow the “larger public interest” as against the “compelling public state interest” test.
- We have framed ten issues.
- Issue 1: Does Aadhaar create a surveillance state and therefore unconstitutional?
- Issue 1 Conclusion: Minimality of data and safeguards as explained by CEO Dr. Pandey noted including all security measures. There are sufficient security measures to protect information. There’s oversight by technology and review board.
- Profiling not possible using Aadhaar. Sufficient safeguards to disallow it.
- However some provisions are struck down. Authentication records cannot be kept for more than six months. The provision that allows keeping records for five years is struck down.
- Section 2(d) read down to not include meta data of transaction.
- Sections 33(1) is read down to afford an opportunity for data subject to be heard.
- National security exception under 33(2) struck down. Lays down that Joint secretary mechanism is arbitrary and requires a judicial warrant.
- Section 57 is also struck down. Private companies cannot insist on Aadhaar.
- Issue 2: Whether Aadhaar act violates right to privacy. Says they have examined only Section 7 and 8 for this purpose. The entire purpose of launching this project is inclusion.
- Issue 2 conclusion by Sikri J: Purpose of the Act is legitimate. Rational connection to purpose is satisfied. Balancing test satisfied by the Act insofar as Aadhaar only collects minimal data.
- On Exclusion, probabilistic method etc – Justice Sikri holds that such Exclusion is concerning – but inclusion is the purpose of the Act, and if we have to throw out the full Act on that ground it would be throwing the baby out with the bathwater.
- Cautions that the court is not trivialising exclusion but has taken on record the statement of AG that no one will be deprived and have also provided guidelines to prevent and minimise exclusion.
- Suitable provisions to be made in regulations for establishing id when Aadhaar auth fails.
- CBSE NET cannot make Aadhaar mandatory.
- Enrolment of children only with parental consent. They should be given an option to exit on attaining majority.
- Sarvasiksha Abhiyan etc and other schemes incident on Aadhaar cannot make Aadhaar mandatory. But can insist on enrolment number with parental consent.
- 2 (b) definition of resident to exclude illegal immigrants.
- Section 29 is upheld as valid. However regulations may be challenged later. But the current regulations are valid.
- Section 33 (2) struck down as mentioned above.
- Section 47 that provides for cognizance of offense. Needs suitable amendment to include grievance redressal by individual or victim herself.
- Section 57 struck down to the extent that “any purpose” should mean any purpose backed by law as far as state authorities are concerned. Fully struck down qua private entities.
- Money Bill issue: Aadhaar Act could have been passed as a Money Bill.
- Section 139AA of the Income Tax Act is upheld.
- PMLA Rule providing for mandatory Bank account and Aadhaar bank linking is struck down as unconstitutional. Does not satisfy the test of proportionality.
- Justice Chandrachud reads out his judgment. Says large area of the judgment is dissent but there are some areas where we’ve agreed.
- says this is a seminal case that poses questions on democracy, power and liberty and constitutionalism.
- In understanding the intersection of governance, technology and freedom, this decision will set the future. Our path will define limited government. The quest for digital India should address the digital divide as well.
- If data is the new oil, it still eludes the common people. Aadhaar must be scrutinized to check if it violates human rights. The case is about the rule of law and institutional governance as well.
- Overrules earlier judgment on money bill whether or not speaker decision is subject to judicial review. Elaborate discussion of rule of law and judicial review. Justice Sikri agrees on this point.
- The decision of the speaker is amenable to judicial review with respect to deciding whether a bill is a money bill or not.
- Judicial review protects the spirit of the constitution. It protects arbitrary conduct. The office of the speaker is no exception to compliance with constitutional principles.
- A law must recognize the principles that liberates us from our colonial laws. The structure of Rajya Sabha reflects the plurality of our nation. Role of Rajya Sabha is to maintain instrinsic accountability.
- However, Aadhaar act does not qualify as money bill. Section 7 is not the central theme of the Aadhaar act and it does not meet the test of Article 110(1). Other provisions of the Act are not incidental provisions. Passing a Bill which is not a money bill as a money bill a subterfuge and a fraud on the constitution. This debasement of a constitutional institution cannot be allowed.
- This is a dissent from Justice Sikri view.
- Although he has held the Aadhaar Act as unconstitutional on the basis of money bill, has also gone into separate provisions and the project.
- This judgement accepts that there is a legitimate state aim.
- However not enough robust safeguards as to informed consent, individual rights such as opt out and several issues in the process and the regulations…both prior to and post the passage of the Act.
- The process of collection of data must be reformed and should be based on taking informed consent of the residents. The Act and regulations are bereft of the provisions for providing consent and access to individuals authentication records.
- The Aadhaar project has failed to remedy the flaws in it’s design and has led to exclusion. Denying social welfare is violation of fundamental rights of citizens.
- The Aadhaar project has failed to remedy the flaws in it’s design and has led to exclusion. Constitutional guarantees cannot be subjected to probability algorithms and technological vicissitudes.
- Algorithms by foreign companies such as L1 and Accenture and control out of UIDAI is noted and not approved. Rights of citizens and national security cannot be protected by merely a contract between UIDAI and private foreign corporations. Also notes how UIDAI takes no responsibility for identification.
- Develops the concept of structural due process and says the framework under the law clearly violates that doctrine. Criminal offences under the Act alone are insufficient.
- Holds that the Aadhaar programme in it’s entirety is completely violative of privacy and unconstitutional.
- MoUs entered between UIDAI and registrars are not valid under article 299. Grievance redressal mechanism severely compromises the independence of the mechanism.
- Aadhaar does not pass the muster of Article 14 of the constitution.
- Strikes down Section 57 as it violates Articles 14 and 21.
- Section 7 suffers from overbreadth since all possible welfare benefits require Aadhaar. This is function creep and authorising breaking down of separate silos and violative of privacy Section 59 which validated earlier notification struck down. Also notes how even 2009 notification did not authorise biometrics.
- Holds that Respondents’ claims on security and safeguards have not only not been convicing enough, but falls short of standards required to protect privacy and data protection.
- Aadhaar allows constructing profiles of individuals. This is against the right to privacy and enables potential surveillance.
- Section 139aa is based on the premise that Aadhaar act is unconstitutional. Not since Aadhaar has been held to be unconstitutional, section 139aa doesn’t stand anymore.
- Strikes down Bank Linking and Telecom linking orders.
- Linking Aadhaar with mobile poses threat to autonomy, dignity and privacy. There might be a legitimate aim but the means to achieve that aim cannot be disproportionate.
- The assumption that every individual who opens a bank account is a potential terrorist or money launderer is draconian. The requirements should be redefined by the govt and RBI following the test of proportionality.
- Says cell phone providers must immediately delete and destroy aadhaar data they have collected immediately.
- Aadhaar cannot obliterate constitutional principles. The Aadhaar Act does not save the Aadhaar project.
- Entire Aadhaar Act and the programme since 2009 is held as unconstitutional. The data shall be kept for 1 year. If govt is able to reenact a new reasonable law, the same can be used for that. But if not, destroy the Aadhaar Data.
- Justice Bhushan reads out his judgment now.
- Says that he mostly concurs with Justice Sikri but has dissented on a few issues.
- An individual reveals a lot of his demographic information for other identity proofs. No expectation of privacy in demographic data used regularly in transactions with govts and public authorities. Therefore revealing demographic information for Aadhaar doesn’t violate the right to privacy.
- Whether right to privacy has been violated in collection of biometric data depends on the context in which it is collected.
- Everyone has a right of identity. Aadhaar is a Pan India identity.
- After constitution, all governments have tried to eliminate poverty.
- Impementation problems and shortcomings do not make Section 7 unconstitutional. No material record to say exclusion has increased post Aadhaar.
- Authorities will have to take steps to minimise exclusion.
- Even if authentication is probabilistic as on date, we have no doubt that authentication success rates will improve. Dissipation of social benefits is a major problem facing the nation.
- Phone linking struck down as it is not backed by law.
- Certification as a money bill can be reviewed by court. Sidiqqi and Yogesh Jaiswal cases overruled. Decision of speaker is subject to judicial review.
- No violation of privacy by Aadhaar. Passes the three fold test in 9 judge bench decision.
- Aadhaar act does not create a framework for surveillance. Section 57 to the extent it includes “contract” is unconstitutional, struck down.
- Rule 9 of the PMLA act does not violate Articles 14 and 21.
- Section 59 upheld. Upholds bank linking and section 139AA as well.
- Justice Bhushan in the end appreciates all the advocates that appeared in the Aadhaar matter.
- Read the full text of the 1448-page Aadhaar judgment here.
