Breaking: Supreme Court upholds Aadhaar, strikes down some provisions [Read Judgment]
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Breaking: Supreme Court upholds Aadhaar, strikes down some provisions [Read Judgment]

Murali Krishnan

In a significant judgment, the Supreme Court today upheld the validity of the Aadhaar Act and scheme by a 4:1 majority.

The judgment was pronounced by a Bench of Chief Justice Dipak Misra and Justices AK Sikri, AM Khanwilkar, DY Chandrachud and Ashok Bhushan. Justice Chandrachud dissented from the majority.

Justice Sikri wrote a judgment on behalf of himself, CJI Misra and Justice Khanwilkar.

“It is better to be unique than to be best”, Justice Sikri began, while eventually holding that Sections 7 and 8 of the Aadhaar Act are not violative of the fundamental right to privacy.

It was held that the benefits Aadhaar provides – particularly to the marginalised sections of society – outweigh the problems surrounding exclusion.

“Lot of people who will benefit due to inclusion cannot be denied due to exclusion of few; Can’t throw baby out with bathwater”, Justice Sikri held.

However, some provisions of the Act were struck down. These include Section 33(2) and Section 57. Section 33(1) has been read down, with the Court stating that it should provide for giving the individual an opportunity to be heard.

Section 33(2) deals with requirement of disclosure of Aadhaar information to  an officer not below the rank of Joint Secretary to the Government of India. Section 33(1) provides for disclosure of information on the basis of a court order. Section 57 authorises use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person.

Section 47, which provides that no court shall take cognizance of an offence under the Act except on a complaint made by UIDAI, should include a provision for an individual to file a complaint, the Court held.

It was also held that Aadhaar cannot be made mandatory for opening bank accounts and for obtaining mobile numbers.

The Court, however, upheld Section 139AA of the Income Tax Act, which mandates Aadhaar-PAN linkage.

The majority judgment authored by Justice Sikri also upheld the passing of the Aadhaar Bill as a Money Bill.

Justice Chandrachud dissented with the majority opinion, stating,

“Constitutional guarantees cannot be left to risks posed by technological advancements.”

He further dissented with the majority opinion on the aspect of the Aadhaar Bill being passed as a Money Bill.

“Passing of bill as money bill when it does not qualify as a money bill is a fraud on Constitution, violates the Basic Structure”, Chandrachud J said while holding that the Aadhaar Bill could not be passed as a Money Bill.

Section 7, which mandates Aadhaar for availing benefits of services, is arbitrary and unconstitutional, Chandrachud J held. Therefore, with his sole dissenting judgment, he struck down the Act.

Justice Ashok Bhushan concurred with the majority opinion, except on three issues.

From Left to Right – Justice Ashok Bhushan, Justice DY Chandrachud, CJI Dipak Misra, Justice AK Sikri and Justice AM Khanwilkar
From Left to Right – Justice Ashok Bhushan, Justice DY Chandrachud, CJI Dipak Misra, Justice AK Sikri and Justice AM Khanwilkar

The brainchild of the UPA government, the Aadhaar Bill was eventually passed by the BJP government. The mode of the passage of the Bill itself raked up controversy and became the subject matter of litigation before the Supreme Court.

From making Aadhaar mandatory for dispensing welfare scheme benefits, to an attempt to bring transparency in the taxation of individuals, almost all the steps towards making Aadhaar the only gateway for complete financial and social inclusion were challenged before the  Supreme Court.

The first petition challenging Aadhaar was filed as far back as in 2012. After a long journey in the Supreme Court, which saw several new petitions, a number of different Benches, a landmark judgment by a nine-Judge Bench and a number of deadline extensions for linking of Aadhaar, the hearing in the case concluded in May 2018.

The Aadhaar hearing was one of the longest hearings in the Supreme Court, second only to Kesavananda Bharati case.

A battery of Senior Advocates appeared in the case. Senior Advocates including Shyam Divan, Arvind Datar, Gopal Subramanium, Meenakshi Arora, KV Viswanathan, CU Singh, P Chidambaram, Sajan Poovayya, Sanjay Hegde and Anand Grover and advocate Prashant Bhushan appeared for the petitioners.

Attorney General KK Venugopal represented the Union of India. Additional Solicitor General Tushar Mehta represented the UIDAI. Senior Advocate Rakesh Dwivedi appeared for UIDAI and State of Gujarat.  Senior Advocate Jayant Bhushan represented RBI.

Read the Judgment:

SC-Judgment-Aadhaar-Sept-26-2018.pdf
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