Collection and retention of biometric data under the Aadhaar Act doesn't violate the Right to Privacy and would not lead to "pervasive surveillance" as the information sought is only for identification of an individual, Justice Ashok Bhushan said Wednesday.
In his separate verdict, concurring with a three-judge majority view upholding constitutional validity of 'Aadhaar', Justice Bhushan, who was part of the Supreme Court's five-judge bench, said an individual while interacting with society reveals several information, like name, age, date of birth and residential address, which is also sought under Aadhaar.
Therefore, there can be "no reasonable expectation of privacy" in giving such data, he said.
He also said that the biometric information obtained for Aadhaar enrolment were photographs, fingerprints and iris scan, "which are least intrusion in physical autonomy of an individual".
"Aadhaar is contemplated as one pan India identity, which is acceptable proof of identity in every nook and corner of the country," the judge said, adding that the conclusion would be fully applicable to transgenders as well.
Justice Bhushan also said Right to Privacy of an individual would not be affected by the storage and retention of such information and dispelled fears that it could lead to "pervasive surveillance", saying the Aadhaar Act and regulations framed under it "provide protection and safety of the data received".
He said a committee headed by retired Supreme Court judge B N Srikrishna has already submitted a report containing a draft Personal Data Protection Bill, 2018 in July 2018 and hoped that a law pertaining to personal data protection shall be in place very soon.
Justice Bhushan, in his 400-page separate judgement, also upheld the provisions under the Aadhaar Act -- sections 29 and 33 -- which permitted restricted sharing of data collected under the scheme, saying that disclosure of information under these provisions were "reasonable and in the public interest".
He further upheld section 7 of the Aadhaar Act, which provided for linking of the demographic and biometric data for availing subsidies and benefits under government schemes, saying that mere denial of relief in some cases due to failure of authentication cannot be reason to strike down the provision.
He said the administration has to "gear up" to ensure rightful beneficiaries are not denied constitutional benefits under various government schemes and added that both the government and the Unique Identification Authority of India (UIDAI) were "fully empowered" to ensure exclusions do not occur and shortcomings and denial are remedied.
Justice Bhushan also agreed with the amendment made to the Prevention of Money Laundering Rules which mandated that bank accounts without Aadhaar or PAN be rendered non-operational.
He said Aadhaar provides a mechanism which "truly identifies" an account holder, which "eliminates fraudulent accounts" of non-existent persons and in ghost names.
"The object of inserting the rule is to make it possible to weed out fake and duplicate PANs and false bank accounts," he said and added that the amendment was a step to "cure menace of fake bank accounts" as well as prevent "money laundering and terror financing".
While concurring with the majority view to strike down section 57 of the Act, which empowered private entities to seek and use Aadhaar authentication for business purposes, the judge said, "Section 57, to the extent, it 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 Section 57, i.e. 'or any contract to this effect' is struck down."
He also concurred with the majority view to strike down a March 2017 circular of the Department of Telecommunications which had directed all telecom service providers to reverify all existing mobile subscribers through Aadhaar based e-KYC process.
"Circular dated March 23, 2017, cannot be held to be a law and direction to re-verification of all existing mobile subscribers through Aadhaar based e-KYC cannot be held to be backed by law, hence cannot be upheld. No law has been framed by permitting use of Aadhaar for verification of SIM of existing subscribers," he said.
Justice Bhushan also concurred with the majority view that Aadhaar would remain mandatory for filing of Income Tax (IT) returns and allotment of Permanent Account Number (PAN), saying the purpose behind linking PAN with Aadhaar was to "ensure that duplicate and fake PAN cards which are used for the purpose of tax evasion will be eliminated".
While he concurred with the three-judge view that Aadhaar Act has been rightly passed as a money bill, he said the decision of the Lok Sabha Speaker certifying the Aadhaar Bill 2016 as a money bill was not immune from judicial review.
"Accepting the submission that certification immunes the challenge on the ground of not fulfilling the constitutional condition, Court will be permitting constitutional provisions to be ignored and bye-passed," he said.
Justice Bhushan also upheld section 47 of the Act which provides for the cognizance of offence only on a complaint made by UIDAI or its authorised officers, saying the provision can be invoked by the authority on its own motion or when it receives a complaint from a victim.
Another provision of the Act which was upheld by him was section 59 which accorded validity to the data collected during 2009 to 2016 when the statute was not in force.
He also said that parental consent for providing biometric information under Regulation 3 & demographic information under Regulation 4 framed under the Act "has to be read" for enrolment of children between 5 to 18 years to uphold the constitutionality of these provisions.
Disclaimer: No Business Standard Journalist was involved in creation of this content
