Justice AK Sikri, CJI Dipak Misra and Justice AM Khanwilkar

It is better to be unique than the best. Because, being the best makes you the number one, but being unique makes you the only one. ‘Unique makes you the only one’ is the central message of Aadhaar, which is on the altar facing constitutional challenge in these petitions. ‘Aadhaar’ which means, in English, ‘foundation’ or ‘base’, has become the most talked about expression in recent years, not only in India but in many other countries and international bodies.

Today, mention of the word ‘Aadhaar’ would not lead a listener to the dictionary meaning of this word. Instead, every person on the very mentioning of this word ‘Aadhaar’ would associate it with the card that is issued to a from where he/she can be identified.

It is described as an ‘Unique Identity’ and the authority which enrols a person and at whose behest the Aadhaar Card is issued is known as Unique Identification Authority of

India (hereinafter referred to as ‘UIDAI’ or ‘Authority’).

It is described as unique for various reasons. UIDAI claims that not only it is a foolproof method of identifying a person, it is also an instrument whereby a person can enter into any transaction without needing any other document in support. It has become a symbol of digital economy and has enabled multiple avenues for a common man. Aadhaar scheme, which was conceptualised in the year 2006 and launched in the year 2009 with the creation of UIDAI, has secured the enrolment of almost 1.1 billion people in this country. Its use is spreading like wildfire, which is the result of robust and aggressive campaigning done by the Government, governmental agencies and other such bodies. In this way it has virtually become a household symbol. The Government boasts of multiple benefits of Aadhaar.

The architecture of Aadhaar as well as the provisions of the Aadhaar Act do not tend to create a surveillance state. This is ensured by the manner in which the Aadhaar project operates.

All matters pertaining to an individual do not qualify as being an inherent part of right to privacy. Only those matters over which there would be a reasonable expectation of privacy are protected by Article 21.

We are, by no means, accepting that when dignity in the form of economic welfare is given, the State is entitled to rob that person of his liberty. That can never be allowed. We are concerned with the balancing of the two facets of dignity. Here we find that the inroads into the privacy rights where these individuals are made to part with their biometric information, is minimal. It is coupled with the fact that there is no data collection on the movements of such individuals, when they avail benefits under Section 7 of the Act thereby ruling out the possibility of creating their profiles. In fact, this technology becomes a vital tool of ensuring good governance in a social welfare state. We, therefore, are of the opinion that the Aadhaar Act meets the test of balancing as well.

Insofar as the argument based on probabilistic system of Aadhaar, leading to ‘exclusion’ is concerned, the Authority has claimed that biometric accuracy is 99.76% and the petitioners have also proceeded on that basis. In this scenario, if the Aadhaar project is shelved, 99.76% beneficiaries are going to suffer. Would it not lead to their exclusion? It will amount to throwing the baby out of hot water along with the water.

The entire aim behind launching this programme is the ‘inclusion’ of the deserving persons who need to get such benefits. When it is serving much larger purpose by reaching hundreds of millions of deserving persons, it cannot be crucified on the unproven plea of exclusion of some.

It is clarified that the Court is not trivialising the problem of exclusion if it is there. However, what we are emphasising is that remedy is to plug the loopholes rather than axe a project, aimed for the welfare of large section of the society.

‘Benefits’ and ‘services’ as mentioned in Section 7 should be those which have the colour of some kind of subsidies etc., namely, welfare schemes of the Government whereby Government is doling out such benefits which are targeted at a particular deprived class. It would cover only those ‘benefits’ etc. the expenditure thereof has to be drawn from the Consolidated Fund of India. On that basis, CBSE, NEET, JEE, UGC etc. cannot make the requirement of Aadhaar mandatory as they are outside the purview of Section 7 and are not backed by any law.

For the enrolment of children under the Aadhaar Act, it would be essential to have the consent of their parents/guardian. Such children who are enrolled under Aad- haar with the consent of their parents, shall be given the option to exit.

Insofar as the school admission of children is concerned, requirement of Aadhaar would not be compulsory as it is neither a service nor subsidy.

Linking made compulsory not only for opening a new bank account but even for existing bank accounts with a stipulation that if the same is not done then the account would be deactivated, with the result that the holder of the account would not be entitled to operate the bank account till the time seeding of the bank account with Aadhaar is done. This amounts to depriving a person of his property.

We find that this move of mandatory linking of Aadhaar with bank accounts does not satisfy the test of proportionality.

TODAY, MENTION OF THE WORD ‘AADHAAR’ WOULD NOT LEAD A LISTENER TO THE DICTIONARY MEANING OF THIS WORD. INSTEAD, EVERY PERSON WOULD ASSOCIATE IT WITH THE CARD THAT IS ISSUED TO A FROM WHERE HE/SHE CAN BE IDENTIFIED