India: Impact Of Aadhar Verdict

Last Updated: 8 October 2018
Article by Vatsala Singh

"This has been the longest hearing before the apex court, second only to the hearing in the Kesavananda Bharti case" – Attorney General K. K. Venugopal."

End to an another landmark litigation, the Supreme Court of India on 26th September 2018 pronounced its judgment in a petition challenging the constitutional validity of Aadhar (Targeted Delivery of Financial and Other. Subsidies, Benefits and Services) Act, 2016 ("Aadhar"). The judgment was passed by the constitution bench comprising of 5 judges with 4:1 majority and a dissenting verdict of Justice Chandrachud. The Court held that Aadhar Act is not unconstitutional and it does not violate the privacy of an Individual. It removes the chances of duplicity and is a full proof of identity. Further it was held that Aadhar helps marginalized sections of the Society.

AFTER EFFECTS

Constitutional validity of Aadhar has been upheld but certain provisions have been erased and some will remain in changed form. Few important changes are:

  1. No longer mandatory to link Aadhar mobile sim cards or bank accounts.
  2. Relief from 'harassment' by banks and telecom companies.
  3. It is mandatory to link Aadhar with PAN for income tax purpose. The dissenting judgment of Justice Chandrachud had struck down Section 139AA of Income Tax Act which mandated linking of PAN with Aaadhar, was struck down but the majority decision has upheld Section 139AA.
  4. Aadhar linking is not mandatory for school admissions, private entities, digital wallets, eKYC, examination conducted by CBSE, UGC and NET.
  5. Aadhar is mandatory for availing government benefits and welfare schemes. This point has been severely criticized by human activists stating that it violates the fundamental right of food and basic necessities and poor people are hit the most, by this clause.
  6. Retention of Data for 5 years was found to be unconstitutional and retaining the data beyond the period of 6 months is impermissible.
  7. Parents consent is mandatory to enroll children under Aadhar scheme, who will have the choice of opting themselves out of the scheme, once they attain majority i.e. 18 years.
  8. Children cannot be denied benefits for lack of Aadhar cards.
  9. Section 47 of the Act relating to cognizance of the offense has been struck down, now Individuals can also file a case under the Aadhar Act.
  10. Section 33(2) of the Act has been struck down, which allowed identity and authentication data to be disclosed in the interest of national security on direction of an officer not below the rank of Joint Secretary to the Government of India
  11. Section 57 of the Act was held to be unconstitutional. Private companies cannot compulsorily demand Aadhar details of their customers.
  12. Court has directed the government to measures to ensure that illegal immigrants are not able to take benefit of Aadhar.

CONCERNS

Bypassing Rajya Sabha to pass the Aadhar Act as money bill, has come under severe criticism about the functioning of the government. Despite, the majority bench didn't hold the Aadhar Act as unconstitutional. On the contrary, Justice Chandrachud has specifically held this act to be unconstitutional on this ground. Further, by striking down the Sections 33 and 57 of the Act, there is no doubt that right to privacy is an important factor but there is still a crowd over the fact as to what happens to the existing private details in the servers of the companies before the judgment. Data privacy issues arising with respect to Aadhar data has not been addressed. Not many have been satisfied with the verdict about Aadhar being mandatory for welfare schemes, in light of basic necessities such as ration being denied due to non-availability of Aadhar and several reports informed starvation deaths in Jharkhand, massive malnutrition and related deaths of children in Maharashtra, Madhya Pradesh, Chhattisgarh and tribal areas.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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