Constitutionality of Aadhaar Act: Judgment Summary

Plain English Summary of Judgment

On September 26th 2018, the Court upheld the constitutional validity of the Aadhaar Act, while striking down certain provisions as unconstitutional. The Bench produced three separate opinions. The majority opinion was written by Sikri J on behalf of CJI Misra, Khanwilkar Jand himself. Bhushan J wrote a concurring opinion. Justice Chandrachud wrote a dissenting opinion.

Sikri J’s Majority Opinion

On behalf of CJI Misra, Khanwilkar J and himself

AK Sikri J writing for CJI Dipak Misra and AM Khanwilkar J delivered the majority judgment in the Aadhaar Case. The majority upheld the constitutionality of Aadhaar, but it struck/read down certain provisions of the Aadhaar Act and the UIDAI Regulations. Crucially, the majority opinion did not strike down Section 7, which makes Aadhaar mandatory for availing State subsidies and benefits.

On Privacy: Aadhaar does not create a Surveillance State

Sikri J first addressed the petitioners’ concern that wide collection of biometrics and demographic data will lead to profiling of individuals and create a surveillance state, thus violating the fundamental right of privacy. He concluded that Aadhaar would not turn India into a surveillance State. Sikri J wrote that the State obtains the minimal possible amount of data — demographic and biometric — from Aadhaar holders and that, further, there are enough safeguards in place to protect the data of Aadhaar holders, such as encryption and time limits on data storage. He concluded that the architecture of Aadhaar as well as the provisions of the Aadhaar Act are not necessarily conducive to creating a surveillance State.

He relied heavily on Dr. Ajay Bhushan’s power-point presentation to emphasize the following points:

• during the enrollment process, there is minimal collection of biometric data
• the collection is purpose blind as it does not collect purpose, location or details of transaction
• the information collected remains in silos.

Aadhar is a Unique and Empowering Identification Document

He said that Aadhaar is unique and more fool proof than other identification documents (PAN, Ration Card). This is because Aadhaar Card is issued on basis of an individual’s biometric information, he submitted. He emphasised that unlike other identification cards, the Aadhaar Card “cannot” be duplicated.  He observed that the Aadhaar Card is rightly labelled “Unique Identification”.

Besides being unparalleled as an identification document, he termed it as “empowering” tool as it facilitates disbursal of state subsidies and benefits to the marginalized and disadvantaged sections of society.

On Aadhaar & the Right to Privacy

One of the main claims made by the petitioners was that the Aadhaar project and Aadhaar Act infringe upon the right to privacy of citizens, specifically the right to live with dignity. He held that the Aadhaar Act does not violate the right to privacy, as it passes the three-fold test established in the landmark privacy judgment, Puttaswamy. He clarified that the standard of review to test privacy infringements by a law is the “just, fair and reasonableness” standard (three-fold Puttaswamy test) and not the “strict scrutiny test”.

The three-fold Puttaswamy test states that in order for legislation to violate the right to privacy, it must fail the following:

1. legality, which postulates the existence of law
2. need, defined in terms of a legitimate state aim
3. proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them

On Aadhaar & the Right to Dignity

He said that Aadhaar helps the disadvantaged sections lead a dignified life by assuring better targeting of subsidies and state benefits and helps in effective realization of a range of socio-economic rights.  He said that there is a need for balance between two conceptions of dignity – one based on the right to personal autonomy and other based on right to live a dignified life. He held that the Aadhaar Act, as a whole, maintains dignity, however he did strike down certain provisions on the grounds that they violate dignity (see below)

The two facets of dignity as stated by Justice Sikri

• individual dignity predicated on freedom of choice and autonomy
• community approach to dignity, which accounts for “common good” and “public good”.

He cited the Puttaswamy judgment to clarify that the right to dignity resides in Article 14 (right to equality), Article 19 (bouquet of freedoms) as well as Article 21 (right to life).

On Striking /Reading Down Specific Provisions

While upholding the Aadhaar Act, he struck down and read down certain provisions.

• Section 2(d) struck down as collection of metadata conducive to surveillance state
• On Aadhaar and Section 7 Benefits, Subsidies

Sikri J upheld Section 7 which made Aadhaar mandatory for availing State subsidies, benefits and services.

But, he held that Aadhaar could not be made mandatory by CBSE, NEET, UGC as they are neither services nor benefits by the State. Similarly, he held that Aadhaar could not be made mandatory for children under the Sarva Siksha Scheme, as elementary education is not a state benefit but an entitlement.

• Section 33(1) of the Act which prohibited disclosure of Aadhaar information except by order of a court,  read down by allowing an individual to appeal to disclosure of Aadhaar information.
• Section 33(2) which allowed disclosure of Aadhaar information in interest of “national security”, struck down.
• Section 47, which allows for cognizance of an offence only when the UIDAI authority or any authorized person makes complaint, partially struck down. Recommended an amendment so that individual victim can file complaint.
• Section 57, read down the part of Section 57, which enabled body corporates and individuals to seek Aadhaar authentication.
• Regulation 27 of Aadhaar (Authentication Regulations) 2016, which allowed retention of data for 5 years, struck down.  The court said that retention of data beyond six months is impermissible.
• On Aadhaar – PAN Linking – upheld  – The majority judgment authored by Sikri held that Aadhaar-PAN linking is valid as it satisfies the three-fold Puttaswamy test (see above).
• On Aadhaar – Bank/SIM Linking – struck down – the majority judgment struck down Bank and SIM linking as compulsory linking does not meet the proportionality test and, further, it does not have legislative backing.
• On Aadhaar and Child enrollment – the majority judgment held that a parent’s consent is essential for enrolling a child into the Aadhaar scheme. It specified that a child upon attaining adulthood, may choose to opt-out of the scheme.

Bhushan J’s Concurring Opinion

Ashok Bhushan J wrote a concurring judgment. He concurred with Justice Sikri’s majority opinion in so far as he upheld the constitutionality of the Act. He differed on the constitutional validity of specific provision within the Act. Justice Bhushan took a more conservative stance. Unlike Sikri, he upheld Sections 33, 47 and Rule 9 of the PLMA.

On Aadhaar as a Money Bill

Bhushan J found that Parliament was competent to pass the Aadhaar Act as a Money Bill under Article 110 of the Constitution. The main aim of the act is to deliver State subsidies and benefits, the expenditure of which falls under the Consolidated Fund of India. Article 110(1)(c) states that a Bill is a Money Bill if it ‘contains only provisions dealing with…the custody of the Consolidated Fund of India’. Justice Bhushan, with reference to Article 110(3), concluded that the Aadhaar Act can justifiably be passed as a Money Bill. Nevertheless, Justice Bhushan affirms that the matter is subject to future judicial review.

On Aadhaar & the Right to Privacy

On the question of whether the Aadhaar Act violates the fundamental right to privacy, Bhushan J responded in the negative. He wrote that that the manner in which the Act prescribes the State to collect, store and use data is consistent with the right to privacy. He also stated that the Act in combination with the UIDAI’s Compendium of Regulations provide citizens adequate control over their data. He concluded that the Act does not create an architecture for pervasive State surveillance.

Bhushan J emphasised that the Act does not violate the right to privacy as it passes the three-fold test established in Puttaswamy. Puttaswamy established the three-fold test for testing whether any State action violates the fundamental right to privacy. The three criteria to be met are: ‘legality’, ‘need’, and ‘proportionality’. Bhushan found that the Act inherently meets ‘legality’, given that the Act was passed by Parliament. He finds that the Act meets the ‘need’ criteria. For him, the State has a legitimate claim to assigning unique identification numbers to citizens, in order to ensure the efficient enactment of welfare schemes. Finally, Bhushan concluded that the Act meets the ‘proportionality’ criteria. ‘Proportionality’ requires that there exists a ‘rational nexus’ between the aim of a piece of legislation and the means adopted to achieve them. Bhushan J stated that the provisions in the Act and the UIDAI’s regulations ensure that the means used are rationally proportional to the end intended, namely enrolment to ensure inclusion in the State.

On Striking/Reading down Specific Provisions:

Bhushan J struck down and read down certain provisions of the Aadhaar Act, related Acts and the UIDAI Regulations.

Below is a list of Sections that were up for review and how Justice Bhushan ruled on each of them:

• Aadhaar & Bank Account Linking / 2017 Amendment to Rule 9 of PMLA: Upheld as constitutional. Rule 9 holds that banks and financial institutions must collect the Aadhaar numbers of their clients. Justice Bhushan ruled that the amendment is not arbitrary because it is consistent with the legitimate aim of the PMLA. He said that it is in the interest of the State to curb money laundering. And, he said that requiring individuals to submit a personal identifier to bank accounts and financial instruments is a rational means of achieving this end.
• Section 7 :Upheld as constitutional. Bhushan held that the right to privacy cannot be given precedence over fundamental right to life under Article 21. He states that Section 7 aims to ensure that all citizens have adequate access to food and shelter.
• Section 29: Upheld as constitutional. The petitioners had argued that the section violates the right to privacy by permitting consensual sharing of identity information. Justice Bhushan upheld the section on the grounds that it sets reasonable restrictions on sharing information
• Section 33: Upheld as constitutional. Justice Bhushan ruled that the section is valid for two reasons. First it provides a database for police investigation. Second it does not violate the protections granted under Article 20(3) of the Constitution.
• Section 47: Upheld as constitutional. The petitioners had challenged the Section on the grounds that it does not allow an individual, who is a victim of fraud, to initiate a criminal process. Justice Bhushan referred to various judgments to conclude that only allowing appropriate authorities to file criminal complaints has legislative purpose and objective.
• Section 57: Read down as unconstitutional. Specifically, Justice Bhushan struck down the phrase ‘or any other contract to this effect’. Section 57 allows private companies to request a person for their Aadhaar number. Justice Bhushan held that Section 57, in its entirety, violates the fundamental right to privacy. In particular, he concluded that requiring Aadhaar for private contracts violates the first criterion of the three-fold Puttaswamy test. The first criterion is ‘legality’. A private contract is not a law.
  •  Note that Justice Bhushan does not completely strike down Section 57. He allows the legislature to pass laws in the future that allow private companies to request Aadhaar, as long as the law passes the three-fold Puttaswamy test.
• Section 59: Upheld as constitutional. Section 59 retrospectively justified all actions the State took to institute Aadhaar prior to the passing of the Aadhaar Act. Justice Bhushan held that the section is constitutional on the grounds that the earlier State actions did not violate the Constitution.
• Regulations 3 & 4: Read in parental consent provisions. Justice Bhushan held that the Act can collect demographic and biometric data on children, as long as parental consent is given.
• Section 139AA of Income Tax Act: Upheld as constitutional. Justice Bhushan ruled that Section 139AA does not violate the right to privacy. As a result, it is mandatory for citizens to link their Aadhaar card to their PAN card.

Chandrachud J’s Dissenting Opinion

“The entire Aadhaar programme, since 2009, suffers from constitutional infirmities and violations of fundamental rights. The enactment of the Aadhaar Act does not save the Aadhaar project. The Aadhaar Act, the Rules and Regulations framed under it, and the framework prior to the enactment of the Act are unconstitutional.

DY Chandrachud J delivered the dissenting opinion in the Aadhaar Case. He held the Aadhaar Act to be unconstitutional from the very stage of its enactment owing to the procedure adopted in passing the law. The Aadhaar Act, he observed, could not have been passed as a Money Bill. Additionally, he also dealt with the arguments referring to specific provisions of the Act, particularly in the context of privacy, dignity and individual autonomy.

On Aadhaar as a Money Bill:

The passing of the Aadhaar Act as a money bill is unconstitutional. For an act to be passed as a money bill, it must only contain such provisions that pertain to matters set out under Article 110(1) clauses (a) – (g) of the Constitution. A perusal of the Aadhaar Act will show that it governs several other aspects relating to the Aadhaar scheme, none of which lie within the scope of Article 110(1).

Additionally, Section 7 does not declare expenditure to be incurred by the Consolidated fund of India, but only that the Aadhaar be made mandatory where such expenditure is incurred.

In the given circumstances, the passage of the Aadhaar Act as a money Bill results in the debasement of a constitutional institution i.e. the Rajya Sabha. The existence of the Rajya Sabha in a bicameral legislature forms an essential part of the basic structure of the Constitution.

The decision of the speaker to certify an ordinary bill like as in the case of Aadhaar limits the role of the Rajya Sabha, which is intrinsic to ensuring executive accountability and maintaining the balance of power.

On Legitimate State Interest:

The framers of the Constitution believed that the driving force to bring social change rested with the State. It was keeping in mind this purpose that the Directive Principles f State Policy were incorporated into the Constitution. The State therefore has a legitimate aim to ensure that its citizens receive basic human facilities and reaching out to targeted populations is a valid constitutional purpose.

When designing a unique measure of identification, the State must ensure both financial exclusion and protection against financial exclusion. The Aadhaar scheme seeks to bring about financial inclusion by providing a means of identification to every segment of the population including those who may not have been within the coverage of traditional markers of identity. Mandate of Section 7 is founded on Legitimate State Interest.

On the question of privacy, dignity & violation of fundamental rights:

Biometric data in unique and distinguishable from other personal information as the former is intimately connected to the individual concerned. This makes concerns about biometric technology particularly significant in the context of privacy and data protection.

The 9-Judge Bench in Puttaswamy held that informational privacy is an essential aspect of the fundamental right to privacy. The ability to control information about oneself is intrinsically linked to the dignity, self-respect and sense of personhood of an individual. Informational privacy is a right protected against excess by both state and non-state actors and access to personal data of an individual must be governed by a legal regime built around the principles of consent, transparency, and individual control.

Any restriction on privacy must be subjected to the three-fold test of legality, legitimate state aim, and proportionality, in addition to meeting the requirements of constitutionally permissible restrictions under Part 3 of the Constitution. Once a biometric system is compromised, it is compromised forever.

Therefore, it is imperative that concerns about protecting privacy must be addressed while developing a biometric system and individuals must be given the right to access, correct and delete their data at any point in time, a procedure familiar to an opt-out option.

The Aadhaar Act and the regulations framed thereunder are silent on the question of informed consent and do not provide for procedure through which individual can access their information.  In this regard, the proviso to Section 28(5) which bars the individual from accessing their own data is invalid as it violates the fundamental principle of ownership of personal data

The “Do No Harm” Principle, which requires that Governments or adjacent authorities do not use biometric and digital identity in such a manner that results in causing harm to the individual concerned, requires rigorous evaluation and continuous oversight.

Creating a strong legal regime for privacy protection and safeguards akin to those provided for under the EUGDPR may assuage the fears of the public and uphold the long-term legitimacy of the Aadhaar. However, in its current form, the Aadhaar framework does not address the privacy concerns and is violative of informational privacy.

The State is under a constitutional obligation to safeguard the dignity of its citizens and the failure of the Aadhaar Act to account for the flaws in the framework and the resultant failures in authentication have led to denial of benefits and exclusion of individuals.

The dignity of an individual cannot be made dependent on algorithms and technological vulnerabilities. Denial of benefits arising out of any social security scheme which promotes socio-economic rights of the marginalized, would not be legitimate under the Constitution Exclusion based on technological errors, with no fault of the individual, is a violation of dignity.

On Striking/Reading Down Specific Provisions

• Section 29(4) of the Act suffers from over-breadth as it gives wide discretionary power to UIDAI to publish, display or post core biometric information of an individual for purposes specified by the regulations.
• Similarly, Section 2 (g), (j), (k) and (t)empower the UIDAI to define the scope of biometric data and further expand the nature of information that may be collected, giving the UIDAI disproportionately wide powers. The definitions of these sections provide the government with unbridled powers to add to the list of biometric details that UIDAI can require a citizen to part with during enrollment which might even amount to an invasive collection of biological attributes including blood and urine samples of individuals.
• The proviso to Section 28(5) of the Aadhaar Act, which disallows an individual access to the biometric information that forms the core of his or her unique ID, is violative of a fundamental principle that ownership of an individual’s data must at all times vest with the individual.
• Section 47 is arbitrary as it fails to provide a mechanism to individuals to seek efficacious remedies for violation of their right to privacy.
• Section 57 is manifestly arbitrary, it suffers from over-breadth and violates Article 14.  It cannot be allowed to pass the test of Constitutional muster.
• Section 7 suffers from over-breadth since the broad definitions of the expressions ‘services and ‘benefits’ enable the government to regulate almost every facet of its engagement with citizens under the Aadhaar platform.
• Validity of Section 139AA of the IT Act:

The 2017 amendments to the PMLA Rules fail to satisfy the test of proportionality. The presumption is that that any person desirous of opening a bank account is a potential money launderer. Moreover, the consequences of the failure to provide Aadhaar details are draconian and the restriction placed excessive and disproportionate.

• Aadhaar-Bank Linking – Prevention of Money Laundering Rules, 2017:

The Court in Binoy Viswam held that the purpose of making Aadhaar Number with PAN Card mandatory under the Income Tax Act was to curb black money, money laundering and tax evasion. Section 139AA is premised on the assumption that the Aadhaar Scheme has been implemented under a valid legislation. The validity of seeding Aadhaar with PAN must therefore depend on the constitutional validity of the Aadhaar Act itself. (As per dissent. invalid)

• Linking SIM Cards with Aadhaar:

Mobile phones in the current day and age are storehouses of personal data and the question that arises is whether Aadhaar is the least intrusive way in which in which the problems associated with subscriber verification may be dealt with.

In the absence of adequate safeguards, biometric data of users can be seriously compromised and exploited for commercial gains and the State must not be oblivious to such privacy concerns. The decision to link Aadhaar numbers with mobile SIM cards is not valid or constitutional as it fails the test of proportionality as laid down by the 9-Judge Bench in Puttaswamy. It fails the test of constitutional muster on account of enabling a disproportionate intrusion into the realm of individual privacy.

All Telecom Service Providers directed to delete the biometric data and Aadhaar details of all subscribers within 2 weeks.