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economy | IST

We broke down today’s 1448-page order by Supreme Court into 10 highlights and takeaways. Here they are

Today’s historic verdict by the Supreme Court runs into 1,448 pages. We have summarised them into 10 issues. We have also listed significant observations as well as the big takeaways.
Is Aadhaar enabling a surveillance state?
  • Very difficult to create a profile of a person based on biometric and demographic information.
  • Hard to believe petitioner’s argument that Aadhaar creates a surveillance state.
  • Data protection is a very important concern.
  • Need a detailed analysis of provisions of Aadhaar Act related to data protection, and a robust data protection regime.
  • UIDAI follows policy of data minimization.
  • Found some portion of Section 57 to be unconstitutional.
  • No need to retain authentication data for 5 years, 6 months is sufficient.
  • WRT news reports on hacks of Aadhaar database: Did not hear parties on this, hope that CIDR will find ways to curb these tendencies.
  • Section 33(2) of Aadhaar Act struck down.
  • Big takeaways: Aadhaar has safeguards, don’t think Aadhaar turns India into a surveillance state, data protection regime is very important, Sections 57 and 33(2) struck down, Retain authentication data only for 6 months.
    Does Aadhaar violate the Right to privacy?
    • Only those matters where there is a reasonable expectation of privacy are protected by Article 21 and Right to privacy.
    • State has a defined aim in legislating Aadhaar Act.
    • Convinced that the Aadhaar Act is aimed at a proper purpose of sufficient importance.
    • Aadhaar has been successful in curbing malpractices like duplicate cards.
    • Fingerprint and iris scans is minimal information required for enrolment of Aadhaar.
    • As against larger public interest, invasion into privacy of these beneficiaries is minimal.
    • Aadhaar Act meets the test of balancing.
    • Rate of exclusion arising from inaccuracy of biometric authentication is alarming.
    • Aadhaar Act does not say that people can be deprived of benefits if authentication fails – this takes care of the problem.
    • Understand that execution of Aadhaar scheme is a work in progress.
    • Government seems to be sincere in its efforts to ensure no exclusion takes place.
    • CBSE, JEE, NEET, UGC cannot make Aadhaar mandatory.
    • Big takeaways: Against public interest, invasion of privacy of beneficiaries is minimal, Aadhaar Act meets test of balancing, Govt seems sincere to prevent exclusion when biometric authentication fails, CBSE UGC NEET JEE cannot make Aadhaar mandatory.
      Should schemes involving children mandate the requirement of Aadhaar?
      • Requirement of Aadhaar card cannot be mandated on children to supersede Right to Education.
      • Forcing compulsion of Aadhaar card when children are incapable of giving consent is disproportionate.
      • Essential to have consent of parents / guardians for enrolment of children under Aadhaar Act.
      • On attaining legal age, children enrolled under Aadhaar with parents’ consent given the option to exit.
      • Aadhaar cannot be made mandatory for admission of children to schools, or for Sarva Shiksha Abhiyaan.
      • Big takeaways: No Aadhaar for children without parental consent, children can opt out of Aadhaar on attaining legal age, cannot make Aadhaar mandatory for admissions & Sarva Shiksha Abhiyaan.
        Whether 18 provisions under the Aadhaar Act are unconstitutional
        • UIDAI encrypts data collected by private agencies and transmits it to CIDR, we don’t agree with petitioners’ apprehensions.
        • Direct Government to not issue Aadhaar cards to illegal immigrants.
        • Provisions of Section 33(2), which give power to Joint Secretary to allow Aadhaar access for police use, struck down.
        • Power to allow Aadhaar access to rest with higher ranking officers than Joint Secretaries, government to rework provision.
        • Section 47 to be amended to allow individuals / victims to file complaints and initiate criminal proceedings under Aadhaar Act.
        • Reiterate that Section 57 does not pass muster of proportionality.
        • See no reason to invalidate enrolments that took place before Aadhaar Act was passed.
        • Big takeaways: Joint Secys not senior enough to allow Aadhaar database access by police, Individuals should be allowed to initiate criminal proceedings under Aadhaar act, Don’t want to invalidate Aadhaar enrolments made before the Act was passed.
          Whether the Aadhaar Act defies the concept of limited government, good governance and constitutional trust
          • Difficult to agree with sweeping charges made by petitioner.
          • Have struck down some provisions which we found unconstitutional, tweaked others.
          • Statutory regime that governs the citizenry wards off any dangers.
          • Big takeaways: Have struck down and tweaked provisions that posed these threats.
            Whether the Aadhaar Act could be passed as a money bill
            • Highlight the importance of Rajya Sabha in a bicameral parliamentary system.
            • Section 7 is the main provision of the Aadhaar Act, and has elements of a money bill.
            • Section 7 has a substantial nexus with appropriation of funds from Consolidated Fund of India, which are in line with Article 110 that lists elements of a money bill.
            • Big takeaways: Bill was rightly introduced as a money bill as Section 7 is the core provision of the Aadhaar Act.
              Whether the linkage of Aadhaar to PAN cards under the IT Act is unconstitutional
              • Validity of Section 139AA needs to be examined in the new context of privacy being a fundamental right.
              • Linking of Aadhaar with PAN card will enhance legitimate collection of country’s revenue.
              • Justifiable reason to link PAN with Aadhaar.
              • Section 139AA meets the triple test of the right to privacy.
              • Big takeaways: PAN-Aadhaar linkage will enhance revenues of country, justifiable to mandate PAN linking with Aadhaar.
                Whether the PMLA notifications mandating Aadhaar linkage to bank accounts are unconstitutional
                • Linking bank details of person to Aadhaar is violative of right to privacy.
                • Presumption of criminality is arbitrary, nobody would keep black money in their bank accounts.
                • Cannot be mandatory provision to link bank accounts to Aadhaar.
                • Shutting bank accounts that aren’t linked to Aadhaar is depriving people of their property.
                • No explanation on how linking Aadhaar to bank accounts will prevent money laundering.
                • Amendment mandating bank accounts with Aadhaar held to be unconstitutional.
                • Big takeaways: No evidence to show linking bank accounts to Aadhaar prevents money laundering, unconstitutional to mandate linkage between the two.
                  Whether the DoT circular mandating Aadhaar linkage to telecom services is unconstitutional
                  • Earlier SC order did not go into issue of SIM linkage with Aadhaar violating privacy of citizens.
                  • Cannot subject citizens to intrusions of privacy just to prevent misuse of SIM cards by a handful of people.
                  • Declare March 23rd circular to be unconstitutional.
                  • Big takeaways: Can’t intrude into privacy of everyone with a SIM card because of a handful of people, declare mandatory SIM-Aadhaar linkage unconstitutional.
                    Whether actions of the government are in contravention of the SC’s interim orders
                    • Government should have clarified with court before issuing new orders under Section 7 of Aadhaar.
                    • Cannot hold government in contempt of court, as Section 7 of the Aadhaar Act had altered statutes.
                    • Big takeaways: Government should have conducted court as soon as matter was sub judice, but can’t hold government in contempt of court.