India: Aadhaar gets Supreme Court approval

October 27, 2018


With the rapid proliferation of digitalization in India, the tech-driven e-platform provides an interface for provision of multiple services. Some of the services available on cyber-world are communication, commercial transactions and online payments, records are also being maintained e-format. One such process of allocating identification numbers to the citizens is Aadhaar.

Recognition by Aadhaar…

Aadhaar is a 12-digit unique identification number based on the biometric and demographic data of the individuals comprising of information such as a photograph, ten fingerprints and two iris scans, which are stored in a centralised database. Aadhaar is the social security number issued to every citizen of the country which is beneficial in the following ways:

  1. robust enough to eliminate duplicate and fake identities, and
  2. can be verified and authenticated in an easy, cost-effective way

The issue and regulation of Aadhaar India is regulated under the Unique Identification Authority of India (hereinafter referred to as “UIDAI”) is the statutory authority established under the provisions of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (hereinafter referred to as “Aadhaar Act”) and Aadhaar (Authentication) Regulations, 2016 (hereinafter referred to as “Regulations”).

Supreme Court validation

In the much-awaited verdict of the Supreme Court of India seeking clarity on the authenticity of the Aadhaar, the majority order vide judgement dated September 26, 2018, enumerated the following[1] :

  • The constitutional validity of Government’s Aadhaar scheme was upheld;
  • Partial scrapping of the provisions of Section 57 of the Act, which allowed private entities which used Aadhaar for verification purpose. Aadhaar no longer required for linking bank accounts and for phone connections;
  • Children (between 6-14 years) have been insulated from the Aadhaar regime owing to their fundamental right to education;
  • Mandatory use of Aadhaar for admission into schools, educational institutions or competitive examinations conducted by Universities Grant Commission or Central Board of Secondary Education have been held invalid;
  • Consent of the parents of children is required before enrolling them for Aadhaar;
  • Striking down the provisions of Section 47 of the Act, which deprived citizens of any right to file a complaint against anyone violating his/ her privacy by illegally using his/ her Aadhaar details or any other fraud;
  • Linking of Permanent Account Number with Aadhaar still continues upholding the validity of Section 139AA of the Income Tax Act, 1961;
  • Aadhaar still remains an indispensable pre-requisite to avail social services, subsidies and benefits under Section 7 of the Act;
  • It has been held that prohibition of disclosure of information, including identity information or authentication records, except when it is by an order of a court not inferior to that of a District Judge under Section 33(1) of the Act only after according him/ her an opportunity to be heard;
  • Tightening of the of personal data safety whereby Aadhaar holder’s data cannot be disclosed on account of national security (Section 33(2) of the Act) since the Constitution does not allow invasion of sensitive and confidential information of the citizens;
  • ‘Triple test’ stating that here ought to be a law, a legitimate state interest and an element of proportionality in law to abridge the right of
  • Government has been directed to ensure that no illegal immigrants are issued Aadhaar;
  • Records should not be held for more than 6 months for the purpose of authentication aborting the provisions of Rule 27 of Regulations which provides archiving a data for a period of five years;
  • Data relating to transaction, as provided in Rule 26 of the Regulations has been held to be impermissible.

Expected Impact

The Supreme Court has vide its aforesaid judgement upheld the use of Aadhaar for the purpose of individual recognition in respect of limited schemes while preventing the use of others

The Apex Court clarifies minimization of the use of Aadhaar based biometric authorization by private sector businesses and institutions thereby reducing the risk of identity theft and other forms of forgeries. The judicial body aims to prevent the intrusion of the privacy of the citizens of the country.

An attempt has been made to balance the public interests in the form of fundamental rights against the essentiality of identity verification.

The new judgement tends to increase difficulties for the private banks, financial institutions, and telecom companies increasing their costs and time for registration of new subscribers.

While the view point of Supreme Court is working to creating a secure and necessary identification process using Aadhaar, it still challenges privacy, liberty and autonomy of the citizens of the country which requires a more data-safe structure.

[1]Justice K.S. Puttaswamy (Retd.) and Another Vs. Union of India and Others [SC Writ Petition (Civil) No. 494 of 2012]

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