Aadhaar Act: What the lone dissenting judge said

The Aadhaar Act could not have been passed as a Money Bill as it amounts to a fraud on the Constitution and is liable to be struck down, Supreme Court Justice DY Chandrachud said on Wednesday.

Justice Chandrachud, who was part of the five-judge Constitution Bench headed by Chief Justice Dipak Misra, wrote a separate judgment saying he had expressed some views different from that of the verdict pronounced by Justice AK Sikri.

By-passing the Rajya Sabha to pass the Aadhaar Act amounted to subterfuge and the law was liable to be struck down as being in violation of Article 110 of the Constitution, he ruled.

Article 110 has specific grounds for classifying a piece of legislation as a Money Bill and the Aadhaar law went beyond this, Justice Chandrachud said, adding that in the current form, the Act cannot be held to be constitutional.

He observed that the enactment of the Act does not save the Centre’s Aadhaar scheme.

Noting that mobile phone had 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 rules of the Prevention of Money Laundering Act 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”.

Justice Chandrachud also said collection of data may lead to individual profiling of citizens.

He said the Aadhaar programme violated informational privacy, self-determination and data protection. It has been admitted by UIDAI that it stores vital data which is in violation of the Right to Privacy, he added.

This data was vulnerable to be misused by third-party and private vendors, and that, without the consent of an individual, Justice Chandrachud maintained and said the Aadhaar project has failed to remedy the flaws in its design, leading to exclusion.

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.

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 DY Chandrachud’s observations

* Aadhaar Act unconstitutional as it was passed as a Money Bill

* Aadhaar framework does not sufficiently assuage concerns of privacy, fears of profiling, surveillance

* Adequate norms must be laid down for steps from collection to retention of biometric data

* Leakage in the verification log poses risk of biometric data being vulnerable to unauthorised exploitation by third parties

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