Can Aadhaar Be Made Compulsory? Supreme Court Decision Today

 

Latest Update: Supreme Court upholds Aadhaar Act 4:1, but places restrictions

 

On Wednesday, the Supreme Court will deliver its verdict on a clutch of petitions challenging Aadhaar on various grounds. A five-judge Constitution Bench will rule on questions such as:

• Does the government have the right to demand that every person authenticate his or her identity through biometric or demographic information with just one proof — a unique identification number — to make sure that government benefits reach their intended targets? Or do Indian citizens have the right to identify themselves using, instead, any of several other documents issued to them by the government?
• Is the Aadhaar project an attack on a person’s privacy, now a fundamental right after a Supreme Court ruling that arose out of the Aadhaar case itself?
• Is the Aadhaar Act valid, given that the way it was passed has been challenged?

Among the concerns raised by petitioners is that the unique identity number could become a tool for mass surveillance by the state. Ahead of Wednesday’s ruling, a look at the genesis of Aadhaar and the grounds on which it has been challenged along the way:

Unique identity

The origins of a unique identity for Indian citizens lie in concerns about national security. Following the report of the Kargil Review Committee, a Group of Ministers recommended a multipurpose National Identity Card. In May 2007, the government handed out the first set of such cards.

The first UPA government announced in its National Common Minimum Programme that for sharp targeting of government subsidies, a detailed roadmap would be drawn up. In March 2006, the government unveiled a plan for a “unique ID” (UID) for Below Poverty Line (BPL) families, to be implemented by the Ministry of Information Technology.

With the UID project clashing with the National ID, an Empowered Group of Ministers decided on January 28, 2008, to create the Unique Identification Authority of India (UIDAI) under the Planning Commission. UIDAI was notified on January 22, 2009; in June, Nandan Nilekani, co-founder of Infosys, was appointed its first chairman.

The first 12-digit Aadhaar number was issued on September 29, 2010. Today, Aadhaar is the world’s largest biometric and identity database with 122.56 crore numbers issued to Indian citizens or persons living in India for more than 180 days; these have been used for 2,322 crore authentications.

Challenges in court

UIDAI, set up by an executive order, lacked a legislative base for seven years. The first legal challenge to its legitimacy came during this period.

In 2012, a retired judge of the Karnataka High Court, Justice K S Puttaswamy, challenged Aadhaar. Last year, Puttaswamy told The Indian Express that he “realised that the Aadhaar scheme was going to be implemented without the law being discussed in Parliament. As a former judge, I felt the executive action was not right. I filed the petition because I felt that my right was affected.”

In 2016 the government passed a law giving Aadhaar legislative sanction. But the way it was passed resulted in yet another challenge. The government termed the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, a Money Bill during the Budget Session in 2016, and passed it in Lok Sabha. Money Bills do not need ratification by Rajya Sabha, where the government is in minority. Former Union Minister Jairam Ramesh challenged the Money Bill route used for Aaadhar, and his case was clubbed with a number of petitions against Aadhaar.

Privacy

When the argument that Aadhaar is an attack on a person’s privacy was brought up in the Supreme Court in 2016, the government argued that it was not clear whether the Constitution granted privacy as a fundamental right. A Constitution Bench ruled after about a year that privacy is indeed a fundamental right guaranteed and protected by the Constitution.

Before that, the idea of digital privacy had come to national attention, and the government announced it would bring a law to protect data. A committee has prepared a draft data protection law, which is yet to be taken up by the government.

After the privacy judgment, more petitions were filed to be impleaded with the pending cases against Aadhaar. The Aadhaar case was referred to a three-judge Bench and finally, to a five-judge Constitution Bench. It heard arguments for 38 days between January and May, the Supreme Court’s second longest oral hearing, next to Kesavanada Bharati (1973) in which the court ruled that the basic structure of the Constitution cannot be altered.

Arguments

The petitioners invoked Kesavanda Bharati, with senior advocate Shyam Divan telling the Supreme Court that the “threat here is far more insidious” as instead of a “frontal attack on the Constitution by amending it”, the “government has rolled out a little understood programme that seeks to tether every resident of India to an electronic leash”.

“This leash is connected to a central data base that is designed to track transactions across the life of the citizen. This record will enable the state to profile citizens, track their movements, assess their habits and silently influence their behaviour. Over time, the profiling enables the state to stifle dissent and influence political decision making… Inalienable and natural rights are dependent on a compulsory exaction. The state is empowered with a ‘switch’ by which it can cause the civil death of an individual. Where every basic facility is linked to Aadhaar and one cannot live in society without an Aadhaar number, the switching off of Aadhaar completely destroys the individual.”

For the government, one of the main arguments was that Aadhaar would help weed out ghost beneficiaries of welfare schemes. A note submitted by Attorney General K K Venugopal said “this is not simply a case where the court is being called upon to test the validity” of the Aadhaar Act “against the right to privacy of the petitioners”. Instead, it is a case “where on one hand the state is using Aadhaar as an enabler of various facets of the right to life of teeming millions of Indian residents including their right to food, the right to livelihood, the right to receive pensions and other social assistance benefits like scholarships etc. by the genuine beneficiaries whereas on the other hand it is sought to be struck down by a handful of petitioners claiming a right to privacy”.

The petitioners invoked Kesavanda Bharati, with senior advocate Shyam Divan telling the Supreme Court that the “threat here is far more insidious” as instead of a “frontal attack on the Constitution by amending it”, the “government has rolled out a little understood programme that seeks to tether every resident of India to an electronic leash”.

“This leash is connected to a central data base that is designed to track transactions across the life of the citizen. This record will enable the state to profile citizens, track their movements, assess their habits and silently influence their behaviour. Over time, the profiling enables the state to stifle dissent and influence political decision making… Inalienable and natural rights are dependent on a compulsory exaction. The state is empowered with a ‘switch’ by which it can cause the civil death of an individual. Where every basic facility is linked to Aadhaar and one cannot live in society without an Aadhaar number, the switching off of Aadhaar completely destroys the individual.”

For the government, one of the main arguments was that Aadhaar would help weed out ghost beneficiaries of welfare schemes. A note submitted by Attorney General K K Venugopal said “this is not simply a case where the court is being called upon to test the validity” of the Aadhaar Act “against the right to privacy of the petitioners”. Instead, it is a case “where on one hand the state is using Aadhaar as an enabler of various facets of the right to life of teeming millions of Indian residents including their right to food, the right to livelihood, the right to receive pensions and other social assistance benefits like scholarships etc. by the genuine beneficiaries whereas on the other hand it is sought to be struck down by a handful of petitioners claiming a right to privacy”.

Following are the top 10 developments in this big story:

1. Over one billion Indians have already signed up for Aadhaar, set up to be a secure form of digital identification for citizens to be used for government services.
2. The 12-digit Unique Identification Number was made compulsory for services including bank accounts, PAN cards, cellphone services, passport and even driving licenses.
3. It was made the overarching proof of identity and residence, overriding all other prior identity proofs.
4. But as it was rolled out, there were concerns about privacy, data security and recourse for citizens in the face of data leaks.
5. Petitioners said Aadhaar — built on a mammoth biometric database comprising fingerprints and iris scans — cannot be made mandatory.
6. The huge Aadhaar database can easily be compromised, petitioners had said, pointing out that a law that “impacts human life can’t remain a law”.
7. The Centre had defended Aadhaar on several grounds – the biggest being that it ensured proper distribution of benefits to millions and prevented siphoning of funds. Aadhaar data, government and Aadhaar authority UIADI contended, is safe and cannot be breached.
8. Even Prime Minister Narendra Modi had come out in defence of Aadhaar, saying it represented the march of technology and those opposing it “have lagged behind in technology — either they cannot understand or are purposely spreading lies”.
9. Hearing in the case started in January and went on for 38 days – making it the second longest after the crucial Keshavananda Bharti case, which questioned if parliament’s power to amend the Constitution was unlimited, to the extent of taking away all fundamental rights. The hearing went on for five months in 1973.
10. Last year, the Supreme Court had ruled that the right to privacy is an “intrinsic part of life and personal liberty”, which is guaranteed by Article 21 of the Constitution.

The UID journey till the Aadhaar verdict today

Govt, 2009-10

January 28, 2009: Planning Commission notification on UIDAI
September 2010: Programme launched in rural Maharashtra
2010-2011: National Identification Authority of India Bill, 2010 introduced; later referred to the Standing Committee on Finance, whose report flags issues of privacy, sensitive information etc

Court, 2012-13

November 30, 2012: First notice from Supreme Court following several PILs, with retired Justice K S Puttaswamy as the lead petitioner
September 23, 2013: Two-judge Bench orders all matters be heard
November 26, 2013: Bench orders that all states and Union Territories be impleaded as respondents

Bill passage, 2016

March 3, 2016: Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Bill 2016 introduced in Lok Sabha; later passed as Money Bill
May 10: Congress leader Jairam Ramesh moves SC challenging passage as Money Bill
October 21: S G Vombatkere vs Union of India challenges validity of Aadhaar Act

Linkage rules, 2017

March 31: Government introduces Section 139AA to Income-Tax Act, making Aadhaar mandatory for PAN applications, filing returns
June 1: Aadhaar made mandatory for opening and maintaining bank accounts, for transactions of Rs 50,000 or more etc
June 9: Two-judge Bench upholds I-T Act Section 139AA; however, for those without Aadhaar card holders, PAN cards not to be treated as invalid for time being

Privacy & after, 2017-18

August 24, 2017: Nine-judge Bench rules that right to privacy is a fundamental right
January 17, 2018: Five-judge Bench begins hearing Aadhaar case
May 10: SC reserves verdict