SC judgment on Aadhaar: What needs to be linked what Does not
The Supreme Court, in it?s Judgment dated 26th September 2018, held Aadhar scheme as constitutionally valid, but with few conditions. The apex court in its judgment has listed out a host of services for which linking of Aadhaar is not mandatory
Situations where Aadhar linking is mandatory
1.) It is mandatory to link PAN card with Aadhaar and Aadhaar is a must for filing income tax returns. The Court upheld Section 139AA of Income Tax Act which mandates to quote Aadhaar/Enrolment ID of Aadhar for filing return of income and for making an application for PAN.
2.) Aadhaar is necessary for availing welfare schemes and subsidies given by the government
SC Judgment on Aadhaar: What needs to be linked what Does not
Situations where Aadhar linking is not mandatory
The key takeaways are:
1.) The Apex Court Struck down the amendment brought in Prevention of Money Laundering Rules which mandated linking of Aadhar with Bank Account.
2.) It is also not required to link Aadhar to your phone numbers.
3.) The SC struck down Section 33 (2) of the Aadhaar Act, which permits disclosure of identity information and authentication records for national security. It also struck down 47 and 57 of the Aadhar Act.
4.) Individuals, Corporates and private parties can no longer mandate Aadhaar, but statutory authorities can, only when there is a provision of a law.
5.) Only an authority above Joint Secretary can take a call on sharing data. There has to be consultation between a secretary-level officer and a sitting or retired judge to decide if data is to be shared in national interest.
6.) Aadhaar Number is not mandatory for school admission and children will be given the option to opt out of Aadhaar benefits after becoming adults.
7.) Purpose of the Aadhaar Act is legitimate but it is satisfied only if Aadhaar collects minimal data and that adequate measures must be in place to protect data.
The relevant extract of the judgement is given below for your kind reference :
386. In view of above discussions, we arrive at following conclusions:?
(1) The requirement under Aadhaar Act to give one’s demographic and biometric information does not violate fundamental right of privacy.
(2) The provisions of Aadhaar Act requiring demographic and biometric information from a resident for Aadhaar Number pass three?fold test as laid down in Puttaswamy (supra) case, hence cannot be said to be unconstitutional.
(3) Collection of data, its storage and use does not violate fundamental Right of Privacy.
(4) Aadhaar Act does not create an architecture for pervasive surveillance.
(5) Aadhaar Act and Regulations provides protection and safety of the data received from individuals.
(6) Section 7 of the Aadhaar is constitutional. The provision does not deserve to be struck down on account of denial in some cases of right to claim on account of failure of authentication.
(7) The State while enlivening right to food, right to shelter etc. envisaged under Article 21 cannot encroach upon the right of privacy of beneficiaries nor former can be given precedence over the latter.
(8) Provisions of Section 29 is constitutional and does not deserves to be struck down.
(9) Section 33 cannot be said to be unconstitutional as it provides for the use of Aadhaar data base for police investigation nor it can be said to violate protection granted under Article 20(3).
(10) Section 47 of the Aadhaar Act cannot be held to be unconstitutional on the ground that it does not allow an individual who finds that there is a violation of Aadhaar Act to initiate any criminal process.
(11) Section 57, to the extent, which permits use of Aadhaar by the State or any body corporate or person, in pursuant to any contract to this effect is unconstitutional and void. Thus, the last phrase in main provision of Section 57, i.e. ?or any contract to this effect? is struck down.
(12) Section 59 has validated all actions taken by the Central Government under the notifications dated 28.01.2009 and 12.09.2009 and all actions shall be deemed to have been taken under the Aadhaar Act.
(13) Parental consent for providing biometric information under Regulation 3 & demographic information under Regulation 4 has to be read for enrolment of children between 5 to 18 years to uphold the constitutionality of Regulations 3 & 4 of Aadhaar (Enrolment and Update) Regulations, 2016.
(14) Rule 9 as amended by PMLA (Second Amendment) Rules, 2017 is not unconstitutional and does not violate Articles 14, 19(1)(g), 21 & 300A of the Constitution and Sections 3, 7 & 51 of the Aadhaar Act. Further Rule 9 as amended is not ultra vires to PMLA Act, 2002.
(15) Circular dated 23.03.2017 being unconstitutional is set aside.
(16) Aadhaar Act has been rightly passed as Money Bill. The decision of Speaker certifying the Aadhaar Bill, 2016 as Money Bill is not immuned from Judicial Review.
(17) Section 139?AA does not breach fundamental Right of Privacy as per Privacy Judgment in Puttaswamy case.
(18) The Aadhaar Act does not violate the interim orders passed in Writ Petition (C) No. 494 of 2012 and other Writ Petitions.”