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Key Issues and Action Plan for Goverment
|No.||Point||Court Decision||Govt. Action|
|1.||Welfare Schemes, Subsidies, etc. drawing funds out of Consolidated Fund of India||Aadhar Mandatory||Benefit cannot be denied, if authentication fails due to change in biometrics|
|2.||National Interest||Aadhar May be disclosed||Sec. 33(2) to be amended to ensure only High Court judge can order this|
|3.||Criminals||Aadhar May be disclosed||Sec. 33(1) to be amended to ensure that accused is given prior hearing and option to challenge decision of disclosure|
|4.||Period of retention||6 months||5 year period struck down – Law to be amended|
|5.||CBSE, NEET, JEE, UGC etc.||No aadhar required, as there is no law||Law may be enacted and then, same may be challenged|
♦ For education – No aadhar required
♦ Welfare Schemes – Aadhar Mandatory
|Education cannot be denied; but, for welfare schemes, Aadhar is mandatory|
|7.||Illegal Immigrants||No Aadhar to be issued|
|8.||Complaint on misuse of Aadhar||Any one (including Aadhar holder may file complaint)||Law to be amended to allow Aadhar holders to file complaint for misuse|
|9.||Private companies using Aadhar for authentication||Not permitted – Section 57 struck down in part upto extent it permits authentication by private companies||Law to be made for each purpose for which Aadhar is required with reasoning and proportionality|
|10.||Passage as Money Bill||Subsidies etc. are regulated and hence, it is money bill||For other purposes, government has to pass separate laws in both Lok Sabha and Rajya Sabha|
|11.||PAN Linking||Aadhar Mandatory||—|
|12.||Bank account opening||Aadhar not required, as requirement not proved
||Law may be made now and law must show genuine purpose with object and be reasonable|
|13.||Mobile Linking||Aadhar not required, as no law made and only a Circular issued||Law may be made now and law must show genuine purpose with object and be reasonable|
The landmark judgment in Aadhar Case is out. It is a 4 : 1 verdict —
|in favour of Aadhar||
1. Hon’ble Mr. Justice AK Sikri wrote majority judgment [pages 1 to 567]
2. CJI Dipak Misra concurred with HMJ AK Sikri
3. HMJ AM Khanwilkar concurred with HMJ AK Sikri
4. HMJ Ashok Bhushan authored a separate concurring judgment with minor difference [pages 1049 to 1448]
|entirely against Aadhar||5. HMJ D.Y. Chandrachud [pages 568 to 1048]|
The Key aspects of majority judgment are —
|Issue||Answer [See para 447 on page 540]|
|(1) Whether the Aadhaar Project creates or has tendency to create surveillance state and is, thus, unconstitutional on this ground?||
The architecture of Aadhaar as well as the provisions of the Aadhaar Act do not tend to create a surveillance state. This is ensured by the manner in which the Aadhaar project operates.
Provisions read-down/struck down :
(i) Authentication records are not to be kept beyond a period of 6 months, as stipulated in Regulation 27(1) of the Authentication Regulations. This provision which permits records to be archived for a period of five years is held to be bad in law.
(ii) Metabase relating to transaction, as provided in Regulation 26 of the aforesaid Regulations in the present form, is held to be impermissible, which needs suitable amendment.
(iii) Section 33(1) of the Aadhaar Act is read down by clarifying that an individual, whose information is sought to be released on the orders of the Court, shall be afforded an opportunity of hearing.
(iv) Insofar as Section 33(2) of the Act (allowing release of data for national security ground) in the present form is concerned, the same is struck down.
(v) That portion of Section 57 of the Aadhaar Act which enables body corporate and individual to seek authentication is held to be unconstitutional.
|(2) Whether the Aadhaar Act violates right to privacy and is unconstitutional on this ground?||
‘Benefits’ and ‘services’ as mentioned in Section 7 should be those which have the colour of some kind of subsidies etc., namely, welfare schemes of the Government whereby Government is doling out such benefits which are targeted at a particular deprived class.
It would cover only those ‘benefits’ etc. the expenditure thereof has to be drawn from the Consolidated Fund of India.
The Authority has claimed that biometric accuracy is 99.76%. In this scenario, if the Aadhaar project is shelved, 99.76% beneficiaries are going to suffer. No deserving person would be denied the benefit of a scheme on the failure of authentication, where the formation of fingerprints may undergo change for various reasons. It may happen in the case of a child after she grows up; it may happen in the case of an individual who gets old; it may also happen because of damage to the fingers as a result of accident or some disease etc. or because of suffering of some kind of disability for whatever reason. Even iris test can fail due to certain reasons including blindness of a person.
On that basis, CBSE, NEET, JEE, UGC etc. cannot make the requirement of Aadhaar mandatory as they are outside the purview of Section 7 and are not backed by any law.
|(3) Whether children can be brought within the sweep of Sections 7 and 8 of the Aadhaar Act?||
For the enrolment of children under the Aadhaar Act, it would be essential to have the consent of their parents/guardian. On attaining the age of majority, such children who are enrolled under Aadhaar with the consent of their parents, shall be given the option to exit from the Aadhaar project if they so choose in case they do not intend to avail the benefits of the scheme. Insofar as the school admission of children is concerned, requirement of Aadhaar would not be compulsory as it is neither a service nor subsidy. Further, having regard to the fact that a child between the age of 6 to 14 years has the fundamental right to education under Article 21A of the Constitution, school admission cannot be treated as ‘benefit’ as well. Benefits to children between 6 to 14 years under Sarv Shiksha Abhiyan, likewise, shall not require mandatory Aadhaar enrolment.
For availing the benefits of other welfare schemes which are covered by Section 7 of the Aadhaar Act, though enrolment number can be insisted, it would be subject to the consent of the parents, as mentioned in (a) above.
We also clarify that no child shall be denied benefit of any of these schemes if, for some reasons, she is not able to produce the Aadhaar number and the benefit shall be given by verifying the identity on the basis of any other documents.
|(4) Whether the following provisions of the Aadhaar Act and Regulations suffer from the vice of unconstitutionality||
(a) Section 2(d) which pertains to authentication records, such records would not include metadata as mentioned in Regulation 26(c) of the Aadhaar (Authentication) Regulations, 2016. Therefore, this provision in the present form is struck down. Liberty, however, is given to reframe the regulation, keeping in view the parameters stated by the Court.
(b) We direct the respondent to take suitable measures to ensure that illegal immigrants are not able to take such benefits.
(c) Retention of data beyond the period of six months is impermissible. Therefore, Regulation 27 of Aadhaar (Authentication) Regulations, 2016 which provides archiving a data for a period of five years is struck down.
(d) Section 33(1) of the Act prohibits disclosure of information, including identity information or authentication records, except when it is by an order of a court not inferior to that of a District Judge. We have held that this provision is to be read down with the clarification that an individual, whose information is sought to be released, shall be afforded an opportunity of hearing. If such an order is passed, in that eventuality, he shall also have right to challenge such an order passed by approaching the higher court.
During the hearing before the concerned court, the said individual can always object to the disclosure of information on accepted grounds in law, including Article 20(3) of the Constitution or the privacy rights etc.
(e) Insofar as Section 33(2) is concerned, it is held that disclosure of information in the interest of national security cannot be faulted with. However, for determination of such an eventuality, an officer higher than the rank of a Joint Secretary should be given such a power. Further, in order to avoid any possible misuse, a Judicial Officer (preferably a sitting High Court Judge) should also be associated with. We may point out that such provisions of application of judicial mind for arriving at the conclusion that disclosure of information is in the interest of national security, are prevalent in some jurisdictions. In view thereof, Section 33(2) of the Act in the present form is struck down with liberty to enact a suitable provision on the lines suggested above.
(f) Insofar as Section 47 of the Act which provides for the cognizance of offence only on a complaint made by the Authority or any officer or person authorised by it is concerned, it needs a suitable amendment to include the provision for filing of such a complaint by an individual/victim as well whose right is violated.
(g) Insofar as Section 57 in the present form is concerned, it is susceptible to misuse inasmuch as: (a) It can be used for establishing the identity of an individual ‘for any purpose’. We read down this provision to mean that such a purpose has to be backed by law. Further, whenever any such “law” is made, it would be subject to judicial scrutiny. (b) Such purpose is not limited pursuant to any law alone but can be done pursuant to ‘any contract to this effect’ as well. This is clearly impermissible as a contractual provision is not backed by a law and, therefore, first requirement of proportionality test is not met. (c) Apart from authorising the State, even ‘any body corporate or person’ is authorised to avail authentication services which can be on the basis of purported agreement between an individual and such body corporate or person. Even if we presume that legislature did not intend so, the impact of the aforesaid features would be to enable commercial exploitation of an individual biometric and demographic information by the private entities. Thus, this part of the provision which enables body corporate and individuals also to seek authentication, that too on the basis of a contract between the individual and such body corporate or person, would impinge upon the right to privacy of such individuals. This part of the section, thus, is declared unconstitutional.
|(5) Whether the Aadhaar Act defies the concept of Limited Government, Good Governance and Constitutional Trust?||Aadhaar Act meets the concept of Limited Government, Good Governance and Constitutional Trust.|
|(6) Whether the Aadhaar Act could be passed as ‘Money Bill’ within the meaning of Article 110 of the Constitution?||Section 7 is the core provision of the Aadhaar Act and this provision satisfies the conditions of Article 110 of the Constitution. Other provisions are incidental in nature which have been made in the proper working of the Act. The Aadhaar Act is validly passed as a ‘Money Bill’.|
|(7) Whether Section 139AA of the Income Tax Act, 1961 is violative of right to privacy and is, therefore, unconstitutional?||Yes|
(8) Whether Rule 9 of the Prevention of Money Laundering (Maintenance of Records) Rules, 2005 and the notifications issued thereunder which mandates linking of Aadhaar with bank
accounts is unconstitutional?
|(9) Whether Circular dated March 23, 2017 issued by the Department of Telecommunications mandating linking of mobile number with Aadhaar is illegal and unconstitutional?||No. Circular dated March 23, 2017 mandating linking of mobile number with Aadhaar is held to be illegal and unconstitutional as it is not backed by any law and is hereby quashed.|