#1 Constitutionality of Aadhaar Act

Ret’d Justice K.S. Puttaswamy vs. Union of India

1.1 – Why did Justice Puttaswamy challenge the constitutionality of Aadhaar before the SC?

1.1.1 – Justice KS Puttaswamy is a retired judge of the Karnataka High Court.

1.1.2 – He challenged the Aadhaar Programme for infringing upon rights guaranteed by the Constitution:

• Privacy: He expressed concern over (i) the ability of private entities to request Aadhaar authentication and (ii) the lack of checks on the power of the government to use the biometric data collected.
• State Entitlements: He argued that entitlements granted to individuals by the State’s social sector schemes are themselves a fundamental right and cannot be restricted by the Aadhaar ID.

1.1.3 – Between 2012-2018, 11 interveners approached the Court challenging various provisions of the Aadhaar Act.

1.2 – Are the Aadhaar hearings the longest ones before the SC?

1.2.1 – In the 21st Century, no other hearings lasted longer than the Aadhaar hearings, which saw 38 days of oral arguments. The longest hearings before the Supreme Court occured in Kesavananda Bharati, 1973, where the Supreme Court established the basic structure doctrine. The hearings lasted 68 days.

1.2.2 – The Court did not allocate time to present oral arguments to each counsel evenly. It is unclear what method the Court used for assigning time to counsels. While some counsels were allocated several days to present arguments, others were given a morning.

1.3 – Did the Court uphold the Aadhaar Act entirely?

1.3.1 – A 4:1 majority upheld the Aadhaar Act as constitutional. It held that the Act does not create a surveillance State and, further, that it has the potential to empower the marginalised by facilitating the disbursal of State subsidies and benefits. Sikri J authored the majority opinion on behalf of now ret’d  Misra CJI, Khanwilkar Jand himself. Bhushan J concurred and Chandrachud J dissented.

1.3.2 – The Court struck down the following provisions of the Aadhaar Act:

1.4 – Has the Union Government delivered on its promise to enact a privacy or data protection law?

1.4.1 – A few months before the Aadhaar judgment, the Srikrishna Committee released its report and a draft Data Protection Bill.

1.4.2 – The Committee recommended amendments to the Aadhaar Act. No such amendments have been passed.

1.4.3 – In May 2018, the European Union’s General Data Protection Regulation (GDPR) came into force. India has no equivalent statute or regulatory framework. The GDPR has set the global standard for data protection laws. It has forced various tech giants, such as Google and Facebook, to alter their data collection and processing practices.

1.5 – 5 Things You Must Read about the Aadhaar case

1.5.1 – Jean Dreze criticises the judgment for treating the poor and the privileged differently.

1.5.2 – In her two-part series, Malavika Prasad analyses the judgment, arguing that it lacks “consistency in logic and reasoning”:

Part I

Part II

1.5.3 – Amba Kak argues that the Srikrishna Committee’s draft Data Protection Bill does not do enough to hold the government accountable.

1.5.4 -In their book “Aadhaar Effect”, NS Ramnath and Charles Assisi trace how a series of “bureaucrats, technologists, activists” conceptualized and implemented the Aadhaar programme as state welfare programme.

By contrast, Reetika Khera argues that Aadhaar is less about welfare and more about surveillance and data-mining, in her book “Dissent on Aadhaar: Big Data Meets Big Brother”.

1.5.5 –Alan Gelb and Anna Diofasi study how identification systems can accelerate development, in their book “Identification Revolution: Can Digitial ID be Harnessed for Development?”.

On the other hand, David Barnard-Wills analyses how identity is linked to surveillance in his book “Surveillance and Identity: Discourse, Subjectivity and the State”.