18 INDIA TODAY OCTOBER 8, 2018
UPFRONT
A
five-judge bench of the Supreme
Court, in an eagerly anticipated
verdict on September 26, upheld
by a majority of four to one the constitu-
tional validity of the Aadhaar Act, 2016.
But the court appeared to also recog-
nise that the penetration of Aadhaar
into every sphere of public activity was
excessive, what is often described as its
‘function creep’. Among the sections it
struck down was 57 which permitted
private entities to demand Aadhaar
data, including biometric data, in
exchange for their services.
The court refused to accept that it
was necessary for commercial banks
or digital wallet companies, Pay tm
for instance, to demand the Aadhaar
details of customers. Mobile service
providers, too, can no longer demand
to see Aadhaar identification or collect
biometric details before doling out
SIM cards, though some 880 million
bank accounts and 700 million mobile
numbers have already been linked to
Aadhaar. Indeed, the dissenting judge,
D.Y. Chandrachud, offered the view that
all telecom companies should delete
what Aadhaar data had been collected.
The judges also agreed that children
could not be denied services for lack
of an Aadhaar card, nor could schools
and education boards link the card to
admissions and exams.
Despite the caveats about over-
reach, the judges agreed in the major-
ity that Aadhaar provides a valuable
service, extends an identity, as Justice
Arjan Kumar Sikri noted, to even the
most marginalised people in society.
The court accepted the government’s
case that Aadhaar enables it to effi-
ciently deliver welfare. Finance minis-
ter Arun Jaitley claimed that the link-
ing of Aadhaar cards to direct benefit
transfer (DBT) saved the government
Rs 90,000 crore. But NITI Aayog
concluded—in a study of DBT through
Aadhaar-seeded bank accounts in the
Union territories of Puducherry, Chan-
digarh and Dadra and Nagar Haveli
conducted between January 2016 and
March 2017—that leakages were simi-
lartothoseestimatedunderthepublic
distribution system.
According to the economist Reeti-
ka Khera, “Aadhaar has not succeeded
inpluggingleaksnorhasitenabled
inclusion in welfare programmes.”
Instead, she says, “exclusion is built
into the Aadhaar ecosystem.” She saidthe government’s own data shows a
considerable proportion of people don’t
receive their benefits. And the Supreme
Court bench, headed by Chief Justice
Dipak Misra, warned the government
that “no individual should be excluded
from the receipt of welfare entitle-
ments, such as foodgrains, for want of
an Aadhaar number”.
For economist Jean Drèze, “Except
for Justice Chandrachud, the judges
have missed the real threat Aadhaar
poses to privacy... the power Aadhaar
gives the government to link multiple
databases and build an infrastructure
of surveillance.”
That said, the court did strike
down Section 33(2) of the Aadhaar
Act, which permitted data sharing on
the grounds of national security. Sec-
tion 47 was also struck down, which
allowed only the government to com-
plain about the theft of Aadhaar data.
And the SC did remind the government
of the need for a robust data protection
lawassoonaspossible.
Usha Ramanathan, another vocal
critic of Aadhaar, said only Justice
Chandrachud had been sensitive to the
ways in which states can wield power
over citizens. In his dissenting opinion,
he argued that by passing the Aadhaar
Act as a so-called money bill, the gov-
ernment had fraudulently sidelined the
Rajya Sabha and had, in fact, violated
theConstitution.Fornow,though,the
court has spoken. Aadhaar is here to
stay. But an attempt has been made to
curtail its inf luence, to stop it becom-
ing a resource for both government and
corporations to gather information
on citizens. The Aadhaar number, the
Supreme Court appeared to be saying,
oughttobeaforceforgood,asitwas
intended,toimprovethedeliveryofben-
efits to the needy, rather than a tool for
the government to play Big Brother.■UNIQUE IDBy Kaushik DekaAADHAAR STAYS, WITH
LIMITS ON ‘FUNCTION CREEP’
The majority verdict
puts brakes on the
untrammelled use
of Aadhaar to gather
information
on all citizensIllustration by TANMOY CHAKRABORTY