AADHAAR STAYS, WITH LIMITS ON ‘FUNCTION CREEP’
Afive-judge bench of the Supreme Court, in an eagerly anticipated verdict on September 26, upheld by a majority of four to one the constitutional validity of the Aadhaar Act, 2016. But the court appeared to also recognise that the penetration of Aadhaar into every sphere of public activity was excessive, what is often described as its ‘function creep’. Among the sections it struck down was 57 which permitted private entities to demand Aadhaar data, including biometric data, in exchange for their services.
The court refused to accept that it was necessary for commercial banks or digital wallet companies, Paytm for instance, to demand the Aadhaar details of customers. Mobile service providers, too, can no longer demand to see Aadhaar identification or collect biometric details before doling out SIM cards, though some 880 million bank accounts and 700 million mobile numbers have already been linked to Aadhaar. Indeed, the dissenting judge, D.Y. Chandrachud, offered the view that all telecom companies should delete what Aadhaar data had been collected. The judges also agreed that children could not be denied services for lack of an Aadhaar card, nor could schools and education boards link the card to admissions and exams.
Despite the caveats about overreach, the judges agreed in the majority that Aadhaar provides a valuable service, extends an identity, as Justice Arjan Kumar Sikri noted, to even the most marginalised people in society. The court accepted the government’s case that Aadhaar enables it to efficiently deliver welfare. Finance minister Arun Jaitley claimed that the linking of Aadhaar cards to direct benefit transfer (DBT) saved the government Rs 90,000 crore. But NITI Aayog concluded—in a study of DBT through Aadhaar-seeded bank accounts in the Union territories of Puducherry, Chandigarh and Dadra and Nagar Haveli conducted between January 2016 and March 2017—that leakages were similar to those estimated under the public distribution system.
According to the economist Reetika Khera, “Aadhaar has not succeeded in plugging leaks nor has it enabled inclusion in welfare programmes.” Instead, she says, “exclusion is built into the Aadhaar ecosystem.” She said the government’s own data shows a considerable proportion of people don’t receive their benefits. And the Supreme Court bench, headed by Chief Justice Dipak Misra, warned the government that “no individual should be excluded from the receipt of welfare entitlements, such as foodgrains, for want of an Aadhaar number”.
For economist Jean Drèze, “Except for Justice Chandrachud, the judges have missed the real threat Aadhaar poses to privacy... the power Aadhaar gives the government to link multiple databases and build an infrastructure of surveillance.”
That said, the court did strike down Section 33(2) of the Aadhaar Act, which permitted data sharing on the grounds of national security. Section 47 was also struck down, which allowed only the government to complain about the theft of Aadhaar data. And the SC did remind the government of the need for a robust data protection law as soon as possible.
Usha Ramanathan, another vocal critic of Aadhaar, said only Justice Chandrachud had been sensitive to the ways in which states can wield power over citizens. In his dissenting opinion, he argued that by passing the Aadhaar Act as a so-called money bill, the government had fraudulently sidelined the Rajya Sabha and had, in fact, violated the Constitution. For now, though, the court has spoken. Aadhaar is here to stay. But an attempt has been made to curtail its influence, to stop it becoming a resource for both government and corporations to gather information on citizens. The Aadhaar number, the Supreme Court appeared to be saying, ought to be a force for good, as it was intended, to improve the delivery of benefits to the needy, rather than a tool for the government to play Big Brother.
The majority verdict puts brakes on the untrammelled use of Aadhaar to gather information on all citizens