Passing Aadhaar law as Money Bill is unconstitutional','fraud': Justice Chandrachud

New Delhi: In his dissenting verdict Justice D.Y. Chandrachud held the Aadhaar law as unconstitutional as the data and information collected for issue of Aadhaar identity card infringes on right to privacy of an individual. Further the Aadhaar law introduced in Parliament, as a ‘Money Bill’ is a fraud on the Constitution.

The Aadhaar project was held to be violative of informational privacy, data protection. “Constitutional guarantees cannot be compromised by vicissitudes of technology”, he observed. Section 57 of the Act was held to be violating Articles 14 and 21 of the Constitution. Allowing private enterprise to use Aadhaar numbers will lead to exploitation of data.

Justice Chandrachud held that entire Aadhar project which commenced from 2009 suffered from constitutional invalidity. The government repeatedly violated the interim orders of the Supreme Court, which had prohibited making Aadhar mandatory for availing benefits.

Based on the premise of unconstitutionality of Aadhar, Section 139AA of the Income Tax Act which mandated linking of PAN with Aaadhar, he struck down the provision. He said the Dignity and rights of individuals couldn’t be based on algorithms or probabilities. Constitutional guarantees cannot be subject to the vicissitudes of technology.

Once a biometric system is compromised, it is compromised forever. Therefore, it is imperative that concerns about protecting privacy must be addressed while developing a biometric system. 

Adequate norms must be laid down for each step from the collection to retention of biometric data.

He pointed out that at the time of collection of data, individuals must be informed about the collection procedure, the intended purpose of the collection, the reason why the particular data set is requested and who will have access to their data. Additionally, the retention period must be justified and individuals must be given the right to access, correct and delete their data at any point in time, a procedure familiar to an opt-out option.

The Judge said prior to the enactment of the Aadhaar Act, no mandatory obligation was imposed upon the Registrars or the enrolling agencies, to obtain informed consent from residents before recording their biometric data, to inform them how the biometric data would be stored and used and about the existence of adequate safeguards to secure the data.

Moreover, prior to the enactment of the Act, while UIDAI had itself contemplated that an

Identity theft could occur at the time of enrollment for Aadhaar cards, it had no solution to the possible harms, which could result after the identity theft of a person. The State is under a constitutional obligation to safeguard the dignity of its citizens. Biometric technology, which is the core of the Aadhaar programme, is probabilistic in nature, leading to authentication failures. These authentication failures have led to the denial of rights and legal entitlements.

Justice Bhushan who agreed with Justice Sikri said no material was placed before the Supreme Court to indicate that there has been considerable denial of benefits of subsidies to deserving persons. He also said that biometric data contains certain personal information of citizens and the breach, if any, has to be ascertained. Besides, he said the decision of terming Aadhaar Act, as Money Bill was not open to judicial review.

Justice Bhushan said the central government has given sufficient reasons to uphold Justice Bhushan also agreed with the view that there was no need to link Aadhaar with mobile numbers. He also rejected the argument that revealing demographic information for Aadhaar amounts to violation of Right to Privacy, saying that an individual reveals such data for other ID proofs.