CONSTITUTIONALITY OF AADHAAR

Governance Issues Service delivery

The range of petitioners who went to court challenging the constitutionality of the UID project raised a spectrum of issues: “seeding” the number in multiple databases and the enhanced power to practise surveillance, tagging, labelling, tracking etc.
Apart from this, the national security risk of having every person in the country on an electronic database; the access given to companies such as L1 Identity Solutions increase the vulnerability of data.

In September 2013, the Supreme Court ordered that no one should be denied any service merely because they did not have an Aadhaar number. The UIDAI immediately went to court to admit that it wanted to be allowed to make it mandatory even if it said it was voluntary. The court did not oblige.
So, the UIDAI just went ahead, acting as if the court order did not exist. Six times between the start of the project and the enactment of the Aadhaar Act in March 2016, the court gave its order, but each time the UIDAI shrugged it off like it was nothing more than a minor irritant.
Starvation deaths linked to the UID had begun to surface even as the case was being heard. On September 28, 2017, Santoshi, 11, died in Jharkhand. His family members were enrolled, but they seem to have been unable to link their UID number with the ration list. The story of Santoshi’s death after eight days of going without food, makes painful telling.

The nine-judge bench decision of August 24, 2017, was categorical. Privacy is a fundamental right. It is a natural right, an inherent right, it was not given by the Constitution but recognised by it, and not having been given, it cannot be taken away either.
However , data collection for Aadhar put question mark on the privacy of individuals.
As data collection agency can use this data for surveillance, tagging, labelling, tracking etc.
The matter becomes more serious because a project to fix our identity was being launched without a law.

There is a lack of a sound study that documents the accuracy achievable on Indian demographics (that is, larger percentage of rural population) and in Indian environmental conditions (that is, extremely hot and humid climates and facilities without air conditioning)” in collecting the biometric data. Several, state government records reveal high failure rate.
According to a study of an NGO, in trials they had done, the failure rate had been 8.54 per cent of those who participated in iris authentication and 6 per cent of those who attempted fingerprint authentication.
Economic Survey 2016-17 stated that biometric failure rates were “49 per cent for Jharkhand, 6 per cent for Gujarat, 5 per cent for Krishna district in Andhra Pradesh and 37 per cent for Rajasthan”.
In the above case data divergence is very high, thus even after the judgement of Supreme Court, it is difficult to determine, how many people are suffering due to Biometric failure.

Convergence, profiling, breaking down of silos by the use of a single number as identifier across discrete databases, labelling and tracking across time and across purposes were among the issues that had been taken to court.
The UIDAI was demonstrably working with State governments to set up State Resident Data Hubs (SRDH) as set out in a 2012 document. The SRDHs were enabled to have a “360 degree view” of their residents.
The majority judgment, however, saw surveillance in the context of the UID project as being about the amount of data that the UIDAI has with it. Judging the amount of data that are with the UID as minimal, the judges directed that records of authentication should be deleted after six months and metadata be contained.

The passage of the Aadhaar Act, 2016, as a Money Bill did not have legitimacy. Constitutional questions abounded.
Article 110 of the Constitution is specific and unequivocal that any Bill to be passed as a Money Bill must have only provisions that are covered by that Article.
Passing the Aadhaar Act as a Money Bill was an act of parliamentary defiance. The Constitution provides that where there is a dispute about whether a Bill is a Money Bill or not, the decision of the Speaker is final. The question before the court was whether the Speaker’s decision could be judicially reviewed.
The majority judgment, however, held that the court’s review of the Aadhaar Act led it to hold that it indeed is a Money Bill.
To arrive at this finding that the Act is valid, the court used the doctrine of “pith of substance”, arguing that since the core of the law was the delivery of benefits, services and subsidies from the Consolidated Fund of India, it was, in pith and substance, a Money Bill.

Making the UID number mandatory “in the name of checking money laundering or black money is grossly disproportionate”, the judges held.
There should have been a proper study about the methods adopted by persons who indulge in money laundering, the kind of bank accounts such persons maintain, and target those bank accounts for the purpose of Aadhaar.
There is no law authorising the linking of the UID number with mobile phones; it fails the test of proportionality, and of necessity, and “there can be other appropriate laws and less intrusive alternatives.

In the end we can say that, privacy as well as delivery of benefits of welfare schemes, both are essential part of the right to live life with dignity.
UID number empowers the “underprivileged and marginalised”, they get a “unique identity” and “it also enables such individuals to avail themselves of the fruits of welfare schemes of the government which are floated as socio-economic welfare measures to uplift such classes. In that sense, the scheme ensures dignity to such individuals.
However, in while delivering such benefits, sacrifice to the right to privacy should not be so invasive that it creates imbalance.”. In such scenario the court should perform the “balancing” act.