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'Passing Aadhaar Act as Money Bill amounts to fraud'

Last updated on: September 27, 2018 00:09 IST

The Aadhaar scheme suffers from constitutional infirmities as it violates fundamental rights, including the right to privacy, Justice D Y Chandrachud of the Supreme Court said on Wednesday in his dissenting verdict.

Maintaining that the use of personal data by private entities without consent will lead to its commercial exploitation, he ordered that the biometric information and Aadhaar details collected by the telecom service providers should be deleted forthwith and they or any one else should not use the information for any purpose.

 

In his lone dissenting judgement, Justice Chandrachud directed the government, under Article 142 of the Constitution, that the existing data which has been collected should not be destroyed or used for any other purposes for one year, during which the government should enact a fresh legislation in conformity with the principles defined in the judgment.

At the end of one year, if no fresh legislation is enacted by the government, 'the data shall be destroyed', he said in the 481 pages penned down by him as part of the total 1,448-page verdict.

The judge also held the Aadhaar Act should not have been passed as Money Bill as it amounts to a fraud on the Constitution and is liable to be struck down.

Observing that the Prevention of Money Laundering Act Rules proceeded on the assumption that every bank account holder is a money launderer, he said the assumption that every individual who opens a bank account is a potential terrorist or a launderer is "draconian" and added that such rules were disproportionate and excessive.

"We clarify that this holding would not preclude the Union Government in the exercise of its rule-making power and the Reserve Bank of India as the regulator to re-design the requirements in a manner that would ensure due fulfilment of the object of preventing money-laundering, subject to compliance with the principles of proportionality as outlined in this judgment," he said.

Stating that the Aadhaar scheme severely impaired informational self-determination, individual privacy, dignity and autonomy, he said protection of data of 1.2 billion citizens is a question of 'national security' which cannot be subjected to the mere terms and conditions of a normal contract with Unique Identification Authority of India, the Aadhaar implementing agency.

When Aadhaar is seeded into every database, it becomes 'a bridge across discreet data silos, which allows anyone with access to this information to re-construct a profile of an individual's life', the judge said.

"This is contrary to the right to privacy and poses severe threats due to potential surveillance," he said, adding that one right cannot be taken away at the behest of the other.

By making Aadhaar mandatory for every benefit extended by the government, 'it is impossible to live in contemporary India without Aadhaar', the judge said and dubbed the provisions of the Act as arbitrary and violative of Article 14 in relation to inclusion of services and benefits.

He said the State has "failed to satisfy" the apex court that the targeted delivery of subsidies, which animate the right to life, entails a necessary sacrifice of the right to individual autonomy, data protection and dignity when both these rights are protected by the Constitution.

Noting that mobile phones have become a ubiquitous feature of people's lives, he said linking of Aadhaar with SIM cards and the requirement of e-KYC authentication of mobile subscribers must be viewed in this light.

He said mobile phones are a storehouse of personal data and reflect upon individual preferences, lifestyle and choices and the conflation of biometric information with SIM cards poses grave threats to individual privacy, liberty and autonomy.

The decision to link Aadhaar numbers with mobile SIM cards is 'neither valid, nor constitutional' and the mere existence of a legitimate state aim will not justify the disproportionate means adopted, he said.

He said the invisible threads of a society networked on biometric data had 'grave portents for the future' and unless the law mandates an effective data protection framework, 'the quest for liberty and dignity would be as ephemeral as the wind'.

"Profiling can impact individuals and their behaviour. Since data collection records the preferences of an individual based on the entities which requested for proof of identity, any such pattern in itself is crucial data that could be used to predict the emergence of future choices and preferences of individuals.

"These preferences could also be used to influence the decision making of the electorate in choosing candidates for electoral offices. Such a practice would be unhealthy for the working of a democracy, where a citizen is deprived of free choice," he said.

Justice Chandrachud said to uphold the democratic values of the Constitution, the government needs to address the concerns highlighted by the court as it would provide a strong foundation for digital initiatives, which are imminent in today's digital age.

He said the entire Aadhaar programme, since 2009, suffered from constitutional infirmities and violations fundamental rights and the enactment of the Aadhaar Act does not save the project.

He said the technology deployed in the Aadhaar scheme reduced the different constitutional identities into a single identity of a 12-digit number and infringed the right of a person to identify herself/himself through a chosen means.

Main takeaways from Justice Chandrachud's judgment

>> Article 110 of Constitution has specific grounds for Money Bill. Aadhaar law went beyond this

>> Passing Aadhaar Act as a Money Bill amounts to a fraud on the Constitution

>> Aadhaar Act liable to be struck down as being violative of Article 110. Rajya Sabha should not have been bypassed

>> Bypassing Rajya Sabha to pass Aadhaar Act amounts to subterfuge

>> Aadhaar programme violates informational privacy, self-determination and data protection

>> It has been admitted by UIDAI that it stores vital data and it's violative of right to privacy

>> Data vulnerable to misuse by third party, private vendors, that too without consent of an individual

>> There is no institutional responsibility of UIDAI to protect data of citizens

>> Denying social welfare is violation of fundamental rights of citizens

>> Aadhaar project has failed to remedy the flaws in its design and has led to exclusion

>> There was absence of regulatory mechanism to provide robust data protection

>> Collection of data may lead to individual profiling of citizens

>> It is impossible to live in India without Aadhaar and it is violative of Article 14

>> If Aadhaar is seeded with every database then there is chance of infringement of right to privacy

>> While Parliament possesses right to make law, the absence of protection leads to violation of various rights

>> Mobile phone has become important feature of life and its seeding with Aadhaar poses grave threat to privacy, liberty, autonomy

>> The Prevention of Money Laundering Act Rules proceed on assumption that every bank account holder is a money launderer

>> Allowing private players to use Aadhaar will lead to profiling which could be used to ascertain political views of citizens

>> Aadhaar allows constructing profiles of individuals which is against right to privacy, enables potential surveillance

>> Assumption that every individual who opens bank account is a potential terrorist or money launderer is draconian

Shikha Verma in New Delhi
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