'Aadhaar Act is Unconstitutional': The Fiery Dissent of Justice D.Y. Chandrachud

“The passing Aadhaar Act as money bill is a fraud on the constitution.”

New Delhi: While the four judges out of a five-justice bench have upheld the Aadhaar project and the Aadhaar Act as constitutionally valid, dismissing most privacy and welfare exclusion concerns, Justice D.Y. Chandrachud’s dissenting opinion goes sharply in the other way.

“Constitutional guarantees cannot be compromised by vicissitudes of technology,” he noted in open court, in what is an emphatic dissent from the majority.

While a dissenting judgement has no force of law, it leaves open the possibility of being referred to a larger bench at a later stage.

Justice Chandrachud’s dissent starts from the legislative process that kick-started the Aadhaar Act, 2016. While the majority view expressed through Justice Sikri’s opinion indicated that there was nothing wrong in present and pushing the Aadhaar Act through Parliament as a money bill, Chandrachud has called it a “fraud on the Constitution”.

“The passing Aadhaar Act as money bill is a fraud on the constitution,” he said, while adding that the decision made by the Lok Sabha speaker to classify it as a money bill could be subject to judicial review.

Also read: Aadhaar Judgement: Supreme Court Upholds Validity But Says Don’t Need to Link to Bank Accounts, Mobile Phones

While Chandrachud held the purpose of the Aadhaar Act to be legitimate, he differed from the majority opinion in noting that there are not enough robust safeguards as to “informed consent and individual rights such as opt-out”.

He also crucially disagreed with the majority opinion on whether Aadhaar minimised data collection and if it laid the ground for mass-profiling by noting that it had the “potential for surveillance” and that its architecture “posed risk on potential violation of leakage of database”.

“The data must all the time vest with the individual,” he said. Allowing private players to use Aadhaar will lead to profiling, which could be used to ascertain the political views of citizens, the judge, who pronounced his separate verdict, said.

He also held that denial of social welfare measures was violation of fundamental rights of citizens.

There is no institutional responsibility of the UIDAI to protect the data of citizens, he said, adding that there was absence of a regulatory mechanism to provide robust data protection.

Also read: After Supreme Court Verdict, What Needs to Be Linked With Aadhaar and What Doesn’t

However, he said it was now impossible to live in India without Aadhaar but it was violative of Article 14. If Aadhaar is seeded with every database, then there is chance of infringement of right to privacy, he said.

Justice Chandrachud said while parliament possesses the right to make a law, the absence of protection leads to violation of various rights.

State subsidies

While Justice Sikri’s opinion largely upholds Section 7 of the Aadhaar Act, which makes the biometric authentication programme mandatory for obtaining state subsidies, Chandrachud has sharply differed.

“Mandating Aadhaar for benefits and services under  Section 7 would lead to a situation in which citizens will not be able to live without Aadhaar,” he stated, while rapping the Central government for making it mandatory for several schemes despite the Supreme Court noting in 2015 that it was to be purely voluntary.

Noting that mobile phone has become an important feature of life and its seeding with Aadhaar posed a grave threat to privacy, liberty, autonomy, he favoured deletion of consumers’ Aadhaar data by the mobile service providers.

Maintaining that the Prevention of Money Laundering Act Rules proceeded on assumption that every bank account holder is a money launderer, he said the assumption that every individual who opens a bank account is a potential terrorist or a launderer is “draconian”, he said.

(With inputs from PTI)

You can follow our extensive coverage of Aadhaar here.