Aadhaar gets thumbs up from Supreme Court

Context:

A five-judges bench of Supreme Court have upheld the passage of Aadhaar Act as a Money Bill.

What is Aadhaar

    • The Aadhaar is the name of the Unique Identification Number that the Unique Identification Authority of India (UIDAI) issues to every resident of India.
    • It is a twelve-digit number which is linked the resident’s demographic and biometric information.
    • The data is collected by the Unique Identification Authority of India (UIDAI), a statutory authority established in January 2009 by the Government of India, under the Ministry of Electronics and Information Technology.
    • It is under the provisions of the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016.

What is UIDAI?

  • The Unique Identification Authority of India was established in 2009 and functions as part of the Planning Commission of India.
  • UIDAI is a government agency that has been mandated by the government to develop, identify and set up the necessary infrastructure for issuing Aadhaar cards to ensure
    • Elimination of duplicate and fake identities, and
    • Person Authentication in an easy, cost-effective way.

Aadhaar Act, 2016

    • The Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016 was passed as a money bill on the 11 March 2016 by the Lok Sabha.
    • It aims to provide legal backing to the Aadhaar unique identification number project.

Objectives of Aadhaar Act, 2016:

    • Aadhaar Act seeks to provide efficient, transparent and targeted delivery of subsidies, benefits and services to individuals residing in India by assigning them unique identity numbers (UID) or Aadhaar number.
    • It will be used for all benefits that will be linked to consolidated fund of India or the expenditure incurred from it.
    • Both central and state governments can use Aadhaar for disbursal of benefits and subsidies.

Why Aadhaar was needed:

  • To facilitate the access to host of governmental benefits and services seamlessly like subsidies, pensions, ration, bank accounts etc. creating an integrated interface.
  • A unique ID would cut down the need of different IDs for various purposes like Driving License, Bank account, Voter ID, Ration card etc, thereby easing compliance for the beneficiaries.
  • A clear registration and recognition of the individual identity with the state is necessary to implement their rights, to employment, education, food etc.
  • To prevent leakages and corruption by removing ghost accounts of multiple beneficiaries and kickbacks of various officials at every stage, thereby ensuring full benefits of any scheme reach the beneficiary.
  • Reduced paperwork and compliance cutting down the government’s operating costs and resulting in savings for the exchequer.
  • This will lead to transition towards a less-cash, financially inclusive society.

The Supreme Court judgment

  • The Supreme Court struck down several provisions in the Aadhaar Act. However, the bench has ruled Centre’s flagship Aadhaar scheme as constitutionally valid.

Debate over the recent Supreme Court Judgement:

  • In a recent Judgement, five-judges Bench of SC says the Bills is a reasonable restriction on individual privacy that fulfils the government’s aim to provide dignity to a large and marginalized population.
  • However, there are several arguments made by dissenting voices, arguing that Adhaar Act is unconstitutional and it is against the fundamental right of Privacy and Dignity of Individual such as:
Dissenting VoicesSupreme Court Verdicts and Judgement
Not a Money Bill:

Law about an identity proof, Aadhaar, cannot be possibly passed as Money Bill.
A Money Bill must deal with the declaring of any expenditure charged on the Consolidated Fund of India.
Section 7 of the Act does not declare the expenditure incurred to be a charge on the Consolidated Fund.
Rajya Sabha’s Authority has been superseded and that this constitutes a fraud on the Constitution.
It is vital to ensure that government aid reached the targeted beneficiaries which may be extended with the support of the Consolidated Fund of India under the scope of Article 110.
Breach of Privacy:

It violates the right to Privacy.
Grand project to harvest personal data for commercial exploitation by private parties and profiling by the state.
Minimal biometric information could not amount to invasion of privacy as Aadhaar does not record information pertaining to race, religion, caste, language, records of entitlements, income or health of the individual.
Neither individuals profiled nor their movements traced when Aadhaar is used to avail government benefits
SC struck down the provision for disclosure of Aadhaar information for national security reasons on the orders of an officer below a Joint Secretary.
Aadhaar information on the orders of a District Judge cannot be provided now without giving the person concerned an opportunity to be heard.
Against Right to Dignity:

Denial of Government benefits through welfare scheme without the Aadhaar Authentication is against right to Dignity of poor.
Enrolment in Aadhaar of the unprivileged and marginalized section of the society, in order to avail the fruits of welfare schemes of the Government, actually amounts to empowering these persons.
Act will create Surveillance State:

Aadhaar regime would facilitate the birth of a “surveillance state”, thereby allowing the creation of a comprehensive profile of an individual.
It is very difficult to create a profile of a person simply on the basis of biometric and demographic information.
Issues with Data Administration:

Problem is with the storage of Data by UIDAI. Act violates widely recognized data minimization principles which mandates the deletion of personal data once the purpose is fulfilled.
Aadhaar card does not capture the data on Race, Caste, Tribe, Ethnicity, Language etc. and uses only demographic information which is not sensitive.
Court has ordered authentication records should not be retained for more than six months
Act Prohibited the creation of a Metadata for transactions
Bill is Unconstitutional:

The provision Aadhaar Act requiring demographic and biometric information from a resident can be said Unconstitutional.
Aadhaar Number passes three-fold test as laid down in Puttaswamy (Supra) case, hence cannot be said to be Unconstitutional.
The Puttaswamy judgment of 2017, which emerged after the government told the Supreme Court that Indians did not have a fundamental right to privacy, concluded that citizens do have such a right and any law would have to be tested against it.
Judicial Review of Speaker Power:

Can the Speaker’s final authority whether a bill is a money bill or not be subjected to Judicial Review?
Indian Constitution does not mention that the speaker’s decision “shall be conclusive for all purposes” and “shall not be questioned in any court of law
The Supreme Court has in three earlier decisions refrained from questioning the speaker’s decision.
Mangalore Ganesh Beedi Works v. State of Mysore (1962),
Saeed Siddiqui v. State of UP (2014)
Yogendra Kumar Jaiswal v. State of Bihar (2015)
In Kihoto Hollohan vs Zachillhu & Ors. (1992, SC held the decision of the speaker is subject to judicial review.
SC has made clear distinction where Aadhaar will be Mandatory and where it is not necessary. 
  Application where Aadhaar linking is not NecessaryApplication where Aadhaar Link is Necessary
To link mobile phone numbers with Aadhaar.To avail subsidy schemes such as LPG, in PDS for welfare benefits
Bank accounts to Aadhaar numbersWhen applying for PAN card
Schools have been barred from making the submission of the Aadhaar number mandatory.Mandatory for any government scheme that draws out of the consolidated fund of India
Not necessary for children aged between six and 14 under the Sarva Shiksha Abhiyan as right to educationAadhaar number or the enrollment ID while filing Income Tax returns
Statutory bodies like CBSE and UGC cannot ask students to produce their Aadhaar cards for examinations like NEET and JEE

Benefits sought by the Supreme Court in its judgement:

Supreme Court has necessitated the Aadhaar linkage for certain services due to the following benefits:

  • To plug leakages in subsidy schemes and to have better targeting of welfare benefits
  • To prevent denial of rights and legal entitlements to marginalized section of society who are dependent on the government schemes and benefits.
  • To bring in regulations for an effective mechanism for delivery of public oriented services.

Challenges Remains after Aadhaar Verdict:

  • Aadhaar scheme does not provide robust mechanism to get consent of citizens before collecting their demographic and biometric data.
  • Aadhaar has serious problems about exclusion and right to benefits cannot be made dependent on authentication of Aadhaar
  • There is no institutional responsibility of the UIDAI to protect the data of citizens and there is absence of a regulatory mechanism to provide robust data protection.
  • Leakage in the verification log poses risk of biometric data being vulnerable to unauthorized exploitation by third parties
  • Adequate norms must be laid down for steps from collection to retention of biometric data.
  • Due to lack of robust infrastructure, like availability of scanning machine or internet connection, people have been denied services like rations, salaries, pensions etc.
  • Absence of an alternate mechanism in case of failure of biometric authentication.
  • SC is silent about the way to erase Aadhaar data which has already been taken by Banks, Telecom Companies etc.
  • Aadhaar verdict may delay KYC for payment wallets, telcos, banks, mutual funds as they have to redefine the verification process.

Way Forward:

  • Government should formulate a comprehensive mechanism to plug loopholes with respect to data protection and build a comprehensive data protection plan.
  • Infrastructural gaps, like internet coverage, reliable and efficient machines, trained manpower, needs to be plugged for efficient targeted delivery of services dependent on Aadhaar.
  • Alternate mechanism is needed in case of Biometric Failure to avail Government benefits.
  • A plan should be envisaged for data erasing from previous seeding and in future cases if it falls in wrong hands.
  • Alternate ID proofs should be made equally valid as Aadhaar until all the population is covered with Aadhaar enrollment even in the services where aadhaar linking has been made mandatory.
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