SC to examine validity of amended law allowing private firms to use Aadhaar data

The Supreme Court Friday decided to examine the constitutional validity of amended Aadhaar law and the regulations allowing private entities to use the 12 digit unique number as proof of identity of consumers for opening bank accounts and getting mobile phone connections.

A bench of Chief Justice S A Bobde and Justice B R Gavai issued notices to the Centre and the Unique Identification Authority of India (UIDAI) on a PIL which alleged that the amended law and the regulations were violative of fundamental rights such as right to privacy of the citizens.

A 5-judge Constitution bench, by a majority verdict of 4:1 in September last year, held the Centre's Aadhaar law as "constitutional" with certain caveats.

It held however that Aadhaar would not be mandatory for opening the bank accounts, mobile connections or school admissions.

The government then brought the amended Bill which was passed on July 8 by Parliament and the amendments provide for use of Aadhaar number for KYC authentication on voluntary basis under the Telegraph Act, 1885, and the Prevention of Money Laundering Act, 2002.

The amendment and the regulations allow voluntary use of Aadhaar number for authentication and identity proof in opening bank accounts and procuring mobile phone connections.

The fresh PIL filed by S G Vombatkere, a former Army officer and Bezwada Wilson, a social activist has challenged the validity of the Aadhaar and Other Laws (Amendment) Act, 2019 and the Aadhaar (Pricing of Aadhaar Authentication Services) Regulations, 2019 on grounds including that they are violative of fundamental rights of privacy, equality and freedom of speech and expression.

The top court, which is already seized of a similar plea, issued notice on the PIL on Friday and ordered its tagging with the other pending PIL.

The plea said the apex court, in its 2018 majority verdict, had allayed the apprehension of surveillance and had limited the Aadhaar-based authentication to only those who avail subsidies.

"The impugned Act goes against this unequivocal restriction by opening up the Aadhaar system to private entities. This is constitutionally impermissible," it said.

"The impugned Act is unconstitutional as it violates the rights guaranteed under Part III of the Constitution. It enables State surveillance and private surveillance of citizens, and commercial exploitation of personal information that is collected and stored for State purposes," the plea said.

The consequence of expanding the use of Aadhaar to private entities is the creation of "federated databases" which compromises peoples' fundamental right to privacy, the plea said and referred to news reports on misuse of Aadhaar data.

Every private entity which has access to Aadhaar database is under a public duty to ensure that the information accessible to it through the "database, including Aadhaar numbers," is neither stored by it for further commercial or other use nor seeded with any other database, it said.

"By permitting private entities to join the Aadhaar ecosystem, the impugned Act exacerbates the threat of surveillance that the Aadhaar project poses. The architecture and design of the Aadhaar project enable mass surveillance. Increasing the number of entities which are allowed access to the Aadhaar database increases this risk of surveillance exponentially," the plea said.

Besides seeking striking down of amended Aadhaar law provisions and the regulations, the plea, alternatively, sought a direction to "declare that private entities which have access to the Aadhaar database are under a public duty to ensure that Aadhaar numbers and the data available through the Aadhaar database are not stored by these private entities".

It has also sought a direction "to certify that no illegal immigrants have been issued Aadhaar numbers and that Aadhaar number which were issued to illegal immigrants have been omitted or deactivated."