Privacy vs security: What is the brouhaha over Aadhaar all about?

What are the provisions that have been retained, struck down or read down by the SC verdict on Aadhaar, explains MJ Antony

What is the origin of the concept of unique identity?

National security and distribution of subsidised benefits for the weaker sections of society were the original considerations. A group of ministers recommended a multipurpose national identity card following the report of the Kargil Review Committee and the first such cards were distributed in 2007. Meanwhile, the UPA I unveiled a unique identity plan in 2006 to plug loopholes in the distribution of subsidised benefits like food and gas to benefit people below the poverty line. In 2008, the Unique Identification Authority of India (UIDAI) was set up. The first Aadhaar card was issued in September 2012.

Who went to Supreme Court against the scheme and what was the main challenge?

A retired judge of the Karnataka high court, Justice K S Puttaswamy, was the first to move the court against the scheme in 2012, raising concerns about the right of privacy and scope for a surveillance state. He also challenged the introduction of the scheme through an executive order, without statutory backing. The court passed interim orders limiting the scheme only to benefit weaker sections. It said that no one shall be denied social benefits for lack of Aadhaar card. However, the government went ahead and made the Aadhaar card compulsory for many other purposes, such as opening bank accounts, getting phone connections and even admissions to primary schools. Later the government passed the Aadhaar Act. In 2017, the Prevention of Money Laundering Act was amended to include mutual funds, credit cards, insurance policies and other financial activities under the Aadhaar umbrella. 

What are the provisions that have been retained, struck down or read down by the Supreme Court verdict of September 26?

The majority of judges (4:1) have retained Section 7 of the Aadhaar Act which empowers the government to ask for the card for offering benefits to marginalised sections of society. The court had upheld Section 139AA of the Income Tax Act, making it mandatory for filing income tax returns. In Wednesday’s judgment, the court reiterated that the provision passed the privacy test. Section 33(1), which deals with disclosure of information, was buttressed by a condition that the individual affected should be given an opportunity of hearing and s/he shall have a right to appeal.

Section 33(2), which provides for disclosure in the interest of national security, was struck down, stating that an officer of a high rank or a judicial officer shall be given the powers under the rule. The court stated that an individual also should be allowed to file complaint of violation of the law. Section 57, which allows private entities to demand the number for any purpose, was also struck down. E-wallets, cab hailers and others have to rework their KYC regime. Regulation 26(c), which allows the authority to store metadata relating to transactions, was struck down. Regulation 27, which allows keeping data for five years, was quashed; it cannot be retained beyond six months.

What can the government do now?

The government can follow the directions given in the judgment and amend the law to remove the constitutional impediments. It may move the Supreme Court for a review of certain directions. The petitioners can move the court to press for further safeguards for citizens and review of the money bill route adopted by the government. However, the chances of getting any relief on these counts are low because review petitions are not normally heard in open court. They are usually heard in chamber by the same judges, during lunch recess, who look at only “errors apparent on record” like laws and rules not considered by the Bench or facts ignored in the judgment. In this case, there would be a change of Bench as Chief Justice Dipak Misra, who headed the Aadhaar Bench, is retiring this weekend. There is a complex route called “curative petition”, which is rarely taken.

Can the government pass a new law that retains its favourite themes like national security considerations?

The Supreme Court has stated in several judgments that passing a law to bypass its directions or bring in the same provisions in a new dress through the backdoor would be liable to be struck down. In any case, the present government has little time left to draft a new law.