Hindustan Times (Patiala)

Aadhaar valid, conditions apply

Justice Chandrachu­d disagrees with fourjudge majority opinion, says passing Aadhaar Act as money bill was a fraud on the Constituti­on

- Bhadra Sinha and Ashok Bagriya letters@hindustant­imes.com

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”.

 ?? GETTY IMAGES ?? The Supreme Court on Wednesday declared the Centre’s flagship Aadhaar scheme as constituti­onally valid but struck down some of its provisions, including its linking with bank accounts, mobile phones and school admissions.
GETTY IMAGES The Supreme Court on Wednesday declared the Centre’s flagship Aadhaar scheme as constituti­onally valid but struck down some of its provisions, including its linking with bank accounts, mobile phones and school admissions.

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