New Delhi: The long-awaited Supreme Court judgement on the constitutional validity of Aadhaar is finally out.
While the five-judge bench, in the three-judge majority opinion, has effectively upheld both the unique identification project and the Aadhaar Act 2016, it has placed a number of restrictions on how who can demand Aadhaar and what services or schemes it can be used for.
While the full verdict is yet to be placed in the public domain – which would provide a more detailed reasoning on the validity of Aadhaar for each service – here’s a quick primer on where you will be required to furnish your biometrics and where you won’t.
Bank accounts: Don’t need to be linked.
In his remarks in open court, Justice Sikri went one step further and noted that changes to the PMLA (Prevention of Money Laundering Act), which mandated Aadhaar linking with bank accounts, were unconstitutional and do not satisfy the legal test of proportionality. This, incidentally, is an argument The Wire has made before.
Mobile phone connections: Don’t need to be linked.
During the course of the hearings, the five-judge bench had pulled up the government for a department of telecommunications (DoT) notification that mandated Aadhaar for both getting new SIMs and re-verifying old SIMs that had been gotten through the traditional paper-based KYC route.
In his remarks, Justice Sikri noted Aadhaar linking for mobile phones is not backed by an underlying law or change to an existing legislation.
“For the misuse of such SIM cards by a handful of persons, the entire population cannot be subjected to intrusion into their private lives. It also impinges upon the voluntary nature of the Aadhaar scheme. We find it to be disproportionate and unreasonable state compulsion,” the judge said on the DoT notification.
PAN card and I-T returns: Yes, it appears likely that Aadhaar-linking for PAN cards will still need to be done.
The majority opinion has upheld Section 139AA of the Income Tax Act, which was the subject of a separate legal battle earlier this year. This is something The Wire has extensively analysed and documented.
Simply put, Section 139AA makes it mandatory for income tax assesses to quote their Aadhaar number in their income tax return and link it to their PAN cards.
While a smaller bench of the Supreme Court had partially read down a part of this section earlier this year — in particular, the penal provisions that kick in if one doesn’t link their Aadhaar to the PAN card — it appears that today’s judgement has overruled the previous ones.
Education schemes: Aadhaar will not be required for most education schemes and entrance exams.
In his remarks in open court, Justice Sikri devoted some time to specifically tackling whether authorities such as CBSE can make Aadhaar mandatory for exams like NEET. He noted that they could not and added that enrolment of children could only happen with “parental consent”.
“…CBSE, NEET, JEE, UGC etc. cannot make the requirement of Aadhaar mandatory as they are outside the purview of Section 7 and are not backed by any law,” the judge’s opinion notes.
“They should also be given an option to exit on attaining majority,” the judge added but did not clarify on whether an opt-out provision for Aadhaar would be allowed.
He also noted that Sarva Siksha Abhiyan and other education schemes that demand Aadhaar now cannot make it mandatory.
Private entities: They cannot demand or use Aadhaar for their services and applications. Section 57 of the Aadhaar Act has been struck down, with regard to the “body corporate” provision. This means a host of financial-technology services, like Airtel Payments Bank, that use Aadhaar as a means of on-boarding customers will not be allowed to do so.
Other companies that have used Aadhaar APIs (application programming interfaces) to provide employee-verification services will also have to find a different business model and underlying technology.
Welfare schemes: A great majority of the Modi government’s welfare and subsidy schemes will still require Aadhaar. Over a hundred schemes that have mandated Aadhaar through notifications issued using the power of Section 7 of Aadhaar Act will still require usage of the biometric authentication programme.
In their reasoning, the majority view expressed through Justice Sikri’s opinion noted that Aadhaar was striving to benefit millions of deserving people and therefore could not be scrapped merely on the ground that “there is a possibility of exclusion of some of the seekers of these welfare schemes”.
While Justice DY Chandrachud held that Section 7 of the Aadhaar Act was unconstitutional, the majority opinion felt that the “baby cannot be thrown out with the bathwater”.
You can follow our extensive coverage of Aadhaar here.