Aad­haar Ver­dict: A Fine Bal­anc­ing Act

The apex court has ruled that Aad­haar will be re­quired to ben­e­fit from ser­vices that draw upon the Con­sol­i­dated Fund of In­dia. The judges cat­e­gor­i­cally stress that the unique iden­tity num­ber can­not be made manda­tory for any other pur­pose.

India Business Journal - - CONTENTS -

The much-awaited ver­dict of the Supreme Court on Aad­haar has fi­nally ar­rived. By any yard­stick, the Aad­haar case that came be­fore a five-judge bench of the Supreme Court was in­cred­i­bly com­plex. No won­der, the ver­dict took a long time to come.

The apex court has rightly pointed out that 99.76 per cent of the coun­try has been en­rolled in the scheme. After this enor­mous ex­er­cise, if the Aad­haar ar­chi­tec­ture was aban­doned now, it would "amount to throw­ing the baby out with the bath­wa­ter."

The wise judges rightly kept the core of the Aad­haar Act in­tact but struck down cer­tain parts which had ob­vi­ously con­tra­vened its orig­i­nal pur­pose. Last month's judge­ment up­holds both the govern­ment's need to de­liver tar­geted wel­fare for em­pow­er­ment and rapid de­vel­op­ment and the pri­vacy con­cerns of ci­ti­zens. Ac­cord­ingly, the court has re­verted Aad­haar to an in­stru­ment of wel­fare. It has closed off the pos­si­bil­ity of ex­pand­ing it to feed the ra­pac­ity of data min­ers or to sat­isfy the un­healthy cu­rios­ity of gov­ern­ments about the pri­vate af­fairs of ci­ti­zens.

The ver­dict pro­nounces Aad­haar as con­sti­tu­tion­ally valid for State schemes. How­ever, it in­val­i­dates link­ing of bank ac­counts and phone con­nec­tions to Aad­haar. The judge­ment re­tains link­ing of Aad­haar to the In­come Tax Per­ma­nent Ac­count Num­ber (PAN). It also tight­ens pro­tec­tion for per­sonal data some­what and re­moves the mo­nop­oly that the Aad­haar Act gave the Unique Iden­tity Au­thor­ity of In­dia (UIDAI) in the mat­ter of pros­e­cut­ing any­one for mis­use of Aad­haar.

In essence, the court has ruled that Aad­haar will be re­quired to ben­e­fit from ser­vices that draw upon the Con­sol­i­dated Fund of In­dia. The judges cat­e­gor­i­cally stress that the unique iden­tity num­ber can­not be made manda­tory for any other pur­pose. In all other cases, prior iden­tity doc­u­ments which were ac­cepted by the UIDAI will re­main ac­cept­able. The sole ex­cep­tions to the prin­ci­ple are di­rect tax­a­tion, for which Aad­haar must be linked to PAN cards, and mat­ters of na­tional in­ter­est, in pur­suit of which data can be shared, but safe­guards have been tight­ened. Com­mer­cial en­ti­ties can­not col­lect or ac­cess Aad­haar data, and meta­data must be stripped from trans­ac­tions in which Aad­haar is quoted.

It is un­for­tu­nate that a ma­jor­ity of the judges (four against one), save for Jus­tice D Y Chan­drachud, found no prob­lem with treat­ing the Aad­haar Bill as a money Bill to cir­cum­vent its pas­sage in the Ra­jya Sabha. In fact, Jus­tice Chan­drachud in his dis­sent­ing ver­dict went to the ex­tent of seek­ing an an­nul­ment of the Aad­haar Act as wholly un­con­sti­tu­tional since it should not have been pi­loted as a money Bill. This had robbed the Ra­jya Sabha of pro­vid­ing its wis­dom to the law. He fur­ther ruled that the law did not com­ply with the def­i­ni­tion of a money Bill un­der Ar­ti­cle 110 of the con­sti­tu­tion. The dis­sent­ing note es­sen­tially serves as a pow­er­ful warn­ing to gov­ern­ments which may seek to short-cir­cuit the Par­lia­ment in the fu­ture.

An­other vi­tal is­sue around the Aad­haar ver­dict is that it does not spec­ify what will hap­pen to data al­ready with banks and cor­po­rate en­ti­ties. What will be the fate of data which ci­ti­zens have al­ready shared with pri­vate en­ti­ties? Will they have to file suit in­di­vid­u­ally to have the data per­ma­nently deleted? These are cru­cial ques­tions that will have to be sorted out soon.

It is rather as­sur­ing that both the ma­jor­ity as well as the dis­sent­ing views stress the need for In­dia to have a strong data pro­tec­tion law. Ideally, the govern­ment should put in place a rig­or­ous law to pro­tect data and pre­vent its mis­use.

Some vi­tal ques­tions still re­main unan­swered in an oth­er­wiseen­light­ened Aad­haar ver­dict.

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