Why Supreme Court feels welfare exclusion can't be used to scrap Aadhaar

The Supreme Court on Wednesday upheld the constitutional validity of Aadhaar. However, the apex court, in its judgment, placed strict limitations on the scope of the project while striking down several contentious provisions of the legislation.

Of the five judge-bench that delivered the verdict, three justices delivered separate opinions. Justice A.K. Sikri delivered the majority opinion, with Chief Justice Dipak Misra and Justice A.M. Khanwilkar concurring with him. In their reasoning, the majority view expressed through Justice Sikri’s opinion noted that Aadhaar was striving to benefit millions of deserving people and therefore could not be scrapped merely on the ground that “there is a possibility of exclusion of some of the seekers of these welfare schemes”.

A great majority of the Modi government’s welfare and subsidy schemes will still require Aadhaar. Over a hundred schemes that have mandated Aadhaar through notifications issued using the power of Section 7 of Aadhaar Act will still require usage of the biometric authentication programme.

Justice Sikri stated today that the Supreme Court “is not trivialising the problem of exclusion if it is there”. The court is rather emphasising that the “remedy is to plug the loopholes rather than axe a project, aimed for the welfare of large section of the society”

The section of the judgment relating to ‘welfare exclusion’ is reproduced below.

The objective of the [Aadhaar] Act is to plug the leakages and ensure that fruits of welfare schemes reach the targeted population, for whom such schemes are actually meant. This is the larger purpose, and very important public purpose, which the Act is supposed to subserve. We have already held that it fulfills legitimate aim and there is a rational connection between the provisions of the Act and the goals which it seeks to attain. The Act passes the muster of necessity stage as well when we do not find any less restrictive measure which could be equally effective in achieving the aim.

In a situation like this, where the Act is aimed at achieving the aforesaid public purpose striving to benefit millions of deserving people, can it be invalidated only on the ground that there is a possibility of exclusion of some of the seekers of these welfare schemes?

Answer has to be in the negative. We may hasten to add that by no means, we are accepting that if such an exclusion takes place, it is justified. We are only highlighting the fact that the government seems to be sincere in its efforts to ensure that no such exclusion takes place and in those cases where an individual who is rightfully entitled to benefits under the scheme is not denied such a benefit merely because of failure of authentication. In this scenario, the entire Aadhaar project cannot be shelved. If that is done, it would cause much more harm to the society.

We are also conscious of the situation where the formation of fingerprints may undergo change for various reasons. It may happen in the case of a child after she grows up; it may happen in the case of an individual who gets old; it may also happen because of damage to the fingers as a result of accident or some disease etc. or because of suffering of some kind of disability for whatever reason. Even iris test can fail due to certain reasons including blindness of a person. We again emphasise that no person rightfully entitled to the benefits shall be denied the same on such grounds.

It would be appropriate if a suitable provision be made in the concerned regulations for establishing an identity by alternate means, in such situations. Furthermore, if there is a 0.232% failure in authentication, it also cannot be said that all these failures were only in those cases where authentication was for the purpose of utilising for the benefit of the welfare schemes, i.e. with reference to Section 7 of the Act.

It could have happened in other cases as well. Be as it may, there is yet another angle which has to be kept in mind and cannot be ignored. We have already highlighted above as to how the Aadhaar project is aimed at serving a much larger public interest.

The Authority has claimed that biometric accuracy is 99.76% and the petitioners have also proceeded on that basis. In this scenario, if the Aadhaar project is shelved, 99.76% beneficiaries are going to suffer. Would it not lead to their exclusion? It will amount to throwing the baby out of hot water along with the water.

In the name of 0.232% failure (which can in any case be remedied), should we revert to the pre-Aadhaar stage with a system of leakages, pilferages and corruption in the implementation of welfare schemes meant for marginalised section of the society, the full fruits thereof were not reaching to such people?

The Aadhaar programme was conceived and conceptualised by Mr Nandan Nilekani under the leadership of then prime minister, a great economist himself. It went through rigorous process of testing about its effectiveness before it is launched. This has been stated in the beginning. The entire aim behind launching this programme is the ‘inclusion’ of the deserving persons who need to get such benefits.

When it is serving much larger purpose by reaching hundreds of millions of deserving persons, it cannot be crucified on the unproven plea of exclusion of some.

We again repeat that the Court is not trivialising the problem of exclusion if it is there. However, what we are emphasising is that remedy is to plug the loopholes rather than axe a project, aimed for the welfare of large section of the society. Obviously, in order to address the failures of authentication, the remedy is to adopt alternate methods for identifying such persons, after finding the causes of failure in their cases. We have chosen this path which leads to better equilibrium and have given necessary directions also in this behalf.
In arrangement with The Wire