Deepa Punjani

| @ | September 27,2018

The Aadhaar verdict is finally out after a marathon 38 hearings that commenced early this year. Held as the second longest case heard by the Supreme Court of India after Keshavananda Bharti in 1973, and buttressed by the historic privacy judgment delivered in 2017, the Aadhaar verdict has been among the most awaited judgments of our times. Several petitions were tagged together, the earliest dating to 2012.

Among the chief concerns of the petitioners were that the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act 2016 [the Aadhaar Act], itself was unconstitutional, and must therefore be entirely struck down; that Aadhaar led to abuse of personal data and breaches of its security were alarming; it further led to exclusion and starvation deaths instead of its purported goal to deliver subsidies; that it subverted the very idea of citizenship, and that its architecture as a whole promoted a surveillance State.

Time will tell how Justice Chandrachud’s judgment will be regarded given that the constitutionality of the Aadhaar scheme and the Act of 2016 has been upheld by Justices Sikri, Khanwilkar, Bhushan, and the CJI Dipak Mishra

Close observers would have expected the outcome. They would have known that there was bound to be some give and take. It was perhaps futile to ever imagine that the entire Act would be struck down, even as Justice Chandrachud of the five-bench judge presiding the case, became its sole dissenter. Time will tell how Justice Chandrachud’s judgment will be regarded given that the constitutionality of the Aadhaar scheme and the Act of 2016 has been upheld by Justices Sikri, Khanwilkar, Bhushan, and the CJI Dipak Mishra. The only silver lining in this aspect is that the court declared that Money Bills, under which the Aadhaar Act was passed, are open to judicial scrutiny.

The 1448-page judgment can be read at leisure. There are three significant outcomes nevertheless.

Section 57 of the Aadhar Act, which was among the most contested sections, that gave private players the right to access Aadhaar details of its customers, has been struck down. The dubious Section 33 (2) is gone as well, which under the pretext of national security permitted the Central Government to disclose information, including identification and authentication information

Section 57 of the Aadhar Act, which was among the most contested sections, that gave private players the right to access Aadhaar details of its customers, has been struck down. The dubious Section 33 (2) is gone as well, which under the pretext of national security permitted the Central Government to disclose information, including identification and authentication information. Section 33(1) has been read down which will now give individuals the right to be heard before allowing the disclosure of their sensitive data upon an order of a District Judge. Significantly, Section 47, which only permitted the UIDAI (Unique Identification Authority of India) to approach the court to file criminal complaints for data breach, has also been struck down. Individuals can now directly approach the court for Aadhar-related grievances and will also be heard if they find that their metadata has been released.

The Modi government’s stance through the entire hearing had been one of not only deliberate silence when it came to acting upon the interim orders by the apex court to stop Aadhaar linkages, but also brash, in that the government did not blink an eye while promoting Aadhaar advertisements even though it knew that the matter was sub-judice

Laudable as these outcomes are, one of the main concerns about the data already procured by Aadhaar, which includes an individual’s biometrics, is a foregone conclusion. The exercise, which began in 2009 under the UPA government, is already privy to a lot of data, which is out there, and has already been procured by third parties and private companies, including telecom operators. The Modi government’s stance through the entire hearing had been one of not only deliberate silence when it came to acting upon the interim orders by the apex court to stop Aadhaar linkages, but also brash, in that the government did not blink an eye while promoting Aadhaar advertisements even though it knew that the matter was sub-judice. It wasn’t the first time either that the Modi Government was being casual about the apex court’s orders and directions.

Besides now that the constitutionality of the Act has been upheld, it has to be seen how and where will the government continue to make it mandatory. There is also no clarity on how such sensitive data will be protected in the future given the serious security breaches that have already taken place

Besides now that the constitutionality of the Act has been upheld, it has to be seen how and where will the government continue to make it mandatory. There is also no clarity on how such sensitive data will be protected in the future given the serious security breaches that have already taken place. While the authentication data after this judgment can no longer be retained for more than six months, there is no deliberation on the security of the data per se, though Justice Sikri has asked for a strong data protection law, which has been in the offing.

People forget that Aadhaar was envisaged as a social welfare scheme in the first place. Since the Modi government announced its mandatory linkage, some of the most deprived sections of our society, in states like Jharkhand, have had starvation deaths for lack of Aadhaar. The terrible irony of this cannot be missed. Going ahead how is the government going to fix the logistical loopholes that have been bedevilling the collection of data right from the inception of the scheme to ensuring that the third parties allotted to collect the data will not misuse the same, remain pressing concerns.

Now that the judgment has seen the light of the day the least we can do as concerned and socially conscious citizens is to reflect on how a side room activity in the now dissolved Planning Commission mesmerised our nation’s consciousness, lulling us to take leave of our body and mind, sometimes forcibly, sometimes surreptitiously, playing all along on our sentiments, in the name of nation and technology.

Read the 1,448-page Aadhaar judgment here.

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