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The Supreme Court of India has recently held vide Judgment dated 26.09.2018 (Judgment) that it is not mandatory for citizens of India to share their Aadhaar card with private entities such as telecom companies, banks, etc.

The Supreme Court in this Judgment decided various petitions that were earlier filed challenging the scheme of Aadhaar in India on the ground that it violates fundamental rights of citizens of India, namely, the right to privacy under Article 21 of the Constitution of India. Earlier, the Supreme Court in Justice K S Puttaswamy (Retd.), and Anr vs. Union of India and Ors 2017, had held that right to privacy is a fundamental right under Article 21 of the Constitution of India. A few other petitions had challenged the constitutional validity of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 (the Act) itself.

In response to all such petitions, the Supreme Court in this case made the following observations while upholding the constitutional validity of the Aadhaar scheme:

That the Act aims at identifying the marginalized section of the society with the use of their Aadhaar numbers for offering them subsidies, benefits or services out of the Consolidated Fund of India and the social welfare schemes launched by the State. For instance, issuance of below poverty line (BPL) Cards, LPG connections and LPG cylinders at minimal costs, ration, pensions, employment, etc. Thus, there exists a legitimate aim of the State in legislating the Act.

That the scheme of Aadhaar is to provide a unique identity to the citizens of India including the marginalized section of society. For enrolment for Aadhaar, demographic as well as biometric information in the form of iris and fingerprints is required, which removes the possibility of duplication. This ensures that only rightful persons receive these benefits.

That the requirement of Aadhaar cannot be made mandatory in the following cases:

For availing the scholarship of CBSE, NEET, JEE and UGC unless it can be shown that the funds flow from the Consolidated Fund of India maintained by the Government of India.

For benefits and services not flowing out of the welfare schemes of the Government targeting a particular deprived class.

For children to seek admission in schools, as right to education is a fundamental right of children between 6 years and 14 years of age under Article 21A of the Constitution of India.

For linking to existing bank accounts and opening new bank accounts, as not entitling a person to operate his bank account until the linking/seeding is done would amount to depriving a person of his property. Moreover, there are no sufficient explanations to show how mandatory linking of every bank account will eliminate/reduce the problems of money laundering and black money.

For using Aadhaar number to link to existing mobile numbers and to register new mobile numbers, as entire population cannot be subjected to mandatory Aadhaar linking because of misuse of SIM cards by a handful of persons.

That the amount of information given by individuals for Aadhaar enrolment is very minimal which is stored with the Central Identities Data Repository, a centralized database in India. It does not include race, religion, caste, tribe, ethnicity, income or medical history, etc. Further, the Act aims to collect the Aadhaar data only to meet the needs of the deprived and destitute so that the State is enabled to provide them a better life through food, clothing, etc. Therefore, there is a fair balance between the right of privacy of the individual with right to life of the same individual as a beneficiary.

That Section 33 of the Act provides that the Aadhaar information may be disclosed only in certain cases including an order of a court, interest of national security, etc. Therefore, such a provision is a reasonable safeguard. But an order for disclosure in the interest of national security should be made by a higher ranking officer along with, preferably, a Judicial Officer. Therefore, the provision of Section 33 to the extent of which it provides power to the Joint Secretary to issue order for disclosure in the interest of national security has been struck down as unconstitutional.

That Section 47 of the Act should be amended to the extent that it would now allow an individual/victim whose right is violated, to file a complaint and initiate the proceedings against the offender under the Act.

That Section 57 of the Act which enables any body corporate or person to seek authentication with the use of Aadhaar is unconstitutional.

The Supreme Court has in this Judgment throughout stated that Aadhaar is only a voluntary scheme except where made mandatory under the Act for availing the benefits and schemes thereunder. The Supreme Court, thereby, upheld the constitutional validity of the Act except where portions of the Act have been struck down as unconstitutional.

Daliparthy Harini

Senior Legal Associate

The Indian Lawyer

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