In a landmark Judgment in K.S. Puttaswamy, J and another vs. Union of India; a five-judge bench, headed by outgoing CJI Dipak Misra, upheld the constitutional validity of Aadhaar but barred Section 33(2) and Section 57 of the Aadhaar act. By this Judgment, the Supreme Court of India ruled that private companies cannot ask for Aadhaar card. It also calls access to the national identity database by private companies wishing to authenticate identities “unconstitutional”. So now, Aadhaar Card is not mandatory for opening bank accounts, linking with sim cards, school admission, examination purpose of other local bodies requirements. However, Aadhaar is mandatory:
- For linking PAN (Permanent Account Number) with Aadhaar is still mandatory;
- availing facilities under government welfare schemes and subsidies.
- while filing income tax (I-T) returns.
The first petition challenging Aadhaar was filed by Former High Court Judge Justice KS Puttaswamy in 2012. He argued that Aadhaar violates the right to privacy and had no legislative backing because Aadhaar Act was not passed at that time. The government argued that the Constitution guaranteed no absolute fundamental right to privacy, so Aadhaar is not violating the right to privacy. Then in 2015, a three-judge bench hearing the matter was on the opinion that the Supreme court should first decide on the question whether privacy is a fundamental right. That’s settled now as a nine-judge Constitution Bench of the Supreme Court, headed by the then Chief Justice of India JS Khehar, unanimously ruled on 24th August that privacy is a fundamental right guaranteed under the Constitution of India.
The Supreme Court started hearing other petitions which challenged linking the biometric ID with welfare schemes, PAN, mobile numbers and bank accounts as it was being opposed by many on security and privacy grounds. On 9th June, the Supreme Court allowed linking Aadhaar with PAN but didn’t pronounce on its validity with respect to the right to privacy.
In deciding the matter, the Supreme court has taken into consideration many issues like whether the Aadhaar project creates or has a tendency to create an unconstitutional surveillance stage; whether the Aadhaar Act violates the right to privacy etc. The Supreme Court has held that the Aadhaar programme involves the application of biometric technology, which uses an individual’s biometric data as the basis of authentication or identification. Once a biometric system is compromised, it is compromised forever. Therefore, it is important to have concerns about protecting privacy. Finally, on 26th September 2018, the Supreme Court of India has pronounced its Judgment and held that Observing that ‘Aadhaar’ neither tends to create a “surveillance state”, nor it infringed the Right to Privacy, the Supreme Court on Wednesday declared that the Centre’s biometric identity project was constitutionally valid but limited the scope, ruling it is not mandatory for bank accounts, mobile connections or school admissions.
In a nutshell, while Aadhaar is constitutionally valid, Supreme Court struck down some of the contentious provisions on mandatory linking of the unique ID with various non-essential services.