Aadhaar valid, conditions apply
DISSENTING VOICE Justice Chandrachud disagrees with fourjudge majority opinion, says passing Aadhaar Act as money bill was a fraud on the Constitution
NEW DELHI: Dissenting with four other judges on the five-judge bench that upheld the constitutionality of Aadhaar, Justice DY Chandrachud on Wednesday criticised various provisions of the Aadhaar Act and called it a fraud on the Constitution for the way it was passed in Parliament. Analysing the 12- digit unique number on the touchstone of fundamental rights, the judge, in his 481-page judgment, said the enabling law infringes on the fundamental rights of citizens.
Here are the key differences between his judgment and the majority one:
SURVEILLANCE
MAJORITY: The four judges said they found no merit in the contention that a surveillance state would be created. They referred to the UIDAI CEO’s presentation and said “we are of the view that it is very difficult to create profile of a person simply on the basis of biometric and demographic information stored”.
CHANDRACHUD: He pointed out that because Aadhaar is being linked to many things, “it
becomes a bridge across discreet data silos”, thereby allowing the creation of a comprehensive profile of an individual. MONEY BILL MAJORITY: The judges accepted the government version that the Aadhaar Act qualified as a money bill because it was meant for welfare measures, and the expenditure incurred in respect of subsidy or service under it would be from the consolidated Fund of India. CHANDRACHUD: He said introducing the Act as a money bill “bypassed the constitutional authority of the Rajya Sabha”. PRIVACY
MAJORITY: They held that Section 7 of the Aadhaar Act, aimed at offering subsidies, benefits or services to the marginalised, was for the greater good. The majority judgment termed the privacy infringement of Aadhaar “minimal”. The judges stressed the need to balance two competing fundamental rights – right to privacy and right to food, shelter and employment. And biometrics are considered accurate and non-invasive modes of identifying people, the judges said.
CHANDRACHUD: He said “using the meta-data related to the transaction, the location of the authentication can easily be traced using the IP address”. In addition, “the conflation of biometric information with SIM cards poses grave threats to individual privacy, liberty...” DATA PROTECTION
MAJORITY: The judges said the data collected goes to the database and added that, in light of recent reports of how the database could be compromised, they hope that UIDAI would ensure ways to protect the data.
CHANDRACHUD: He said, “The proviso of the Aadhaar Act, which disallows an individual access to the biometric information that forms the core of his or her unique ID, is violative of a fundamental principle that ownership of an individual’s data must at all times vest with the individual.”
RIGHT TO DIGNITY
MAJORITY: The judges saw Aadhaar as a shift from the welfare approach to a rights-based one. Eradicating extreme poverty and hunger is one of the goals under the Millenium Development
Goals of the United Nations, they said. CHANDRACHUD: He said, “Dignity and the rights of individuals cannot be made to depend on algorithms or probabilities.” PROPORTIONALITY TEST MAJORITY: The Aadhaar law met the test of proportionality (or trade-offs), they said.
CHANDRACHUD: He said the law and measures adopted by the government do not meet the test of necessity and proportionality. DATA MINIMISATION
MAJORITY The Aadhaar Act only uses demographic information, which isn’t sensitive and where no reasonable expectation of privacy exists, the judges said. It does not capture data on race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history.
CHANDRACHUD: He had a problem with the storage of data by UIDAI and the authentication agencies because this violates “widely recognized data minimisation principles which mandate that data collectors and processors delete personal data records when the purpose for which it has been collected is fulfilled”.