The Supreme Court Wednesday either set aside or read down as many as six provisions of the Aadhaar law and its regulations including those which allowed authorities to access personal information of an individual on national security concerns.
The top court was dealing with vehement pleas seeking setting aside of as many as 18 provisions or regulations under the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016 on the ground that they violated various fundamental rights, especially the right to privacy.
A five judge bench headed by Chief Justice Dipak Misra, by a majority of 4:1, struck down section 33 (2) of the Aadhaar Act which provided disclosure of biometric and demographic details in the interest of national security.
It said however that the scheme of such disclosure cannot be faulted with.
"However, for determination of such an eventuality, an officer higher than the rank of a Joint Secretary should be given such a power. Further, in order to avoid any possible misuse, a Judicial Officer (preferably a sitting High Court Judge) should also be associated with...., Section 33(2) of the Act in the present form is struck down with liberty to enact a suitable provision," said Justice A K Sikri, writing the majority verdict.
It also set aside Aadhaar regulation 27 (1) permitting Unique Identification Authority of India (UIDAI) to preserve authentication records for a period of five years and said it cannot be preserved beyond a period of six months.
The regulation which dealt with storage of meta data of transactions was also set aside and the court said that it needed to be amended.
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It also read down section 33(1) of the Aadhaar saying that an individual, whose information is sought to be released, should be afforded an opportunity of hearing.
"Section 33(1) of the Act prohibits disclosure of information, including identity information or authentication records, except when it is by an order of a court not inferior to that of a District Judge. We have held that this provision is to be read down with the clarification that an individual, whose information is sought to be released, shall be afforded an opportunity of hearing...," it said.
The bench said that section 47, which provides for the cognizance of offence only on a complaint made by UIDAI or its authorised officers, needed "suitable amendment to include the provision for filing of such a complaint by an individual/ victim as well whose right is violated".
It termed as "susceptible to misuse" and struck down section 57 which empowered the private entities to seek and use Aadhaar authentication for business purposes.
"We read down this provision to mean that such a purpose has to be backed by law. Further, whenever any such 'law' is made, it would be subject to judicial scrutiny. Such purpose is not limited pursuant to any law alone but can be done pursuant to 'any contract to this effect' as well.
"This is clearly impermissible as a contractual provision is not backed by a law and, therefore, first requirement of proportionality test is not met," the bench said.
Besides sections of Aadhaar law, the bench also set aside a provision of the Prevention of Money Laundering Act which made Aadhaar mandatory for bank accounts.
The bench, however, upheld the constitutionality of 12 other provisions or regulations including section 59 of the Act which accorded validity to the data collected during 2009 to 2016 when the statute was not in force.
The majority verdict said it would be mandatory to link PAN with Aadhaar, filing Income Tax returns and availing facilities of welfare schemes and government subsidies.
It said seeding of Aadhaar would not be required for availing mobile services, by CBSE, NEET, JEE, UGC and for admissions in schools and free education for children. They were mandatory through various notifications.