The second question which was answered by the three judges was “Whether the Aadhaar Act violates the right to privacy and is unconstitutional on this ground?
The judges proceeded to answer this question by stating that since the scheme is backed by the statute and serves a legitimate State aim and it does not infringe on the Privacy of the individuals. It however held that it should be used for delivery of benefits and services but not for reasons such as making it mandatory for CBSE exam etc.
In otherwords it stated that the Government should use it only for schemes where subsidies are distributed from the consolidated fund of India by drawing attention to Section 7 of the Aadhaar Act.
It is however not clear why Supreme Court considered that Section 7 limited the use of Aadhaar only for schemes involving funds from the consolidated funds of India since the section does not seem to make such limitations. The section only states that it may be used for such purposes.
Since on the one side the Court felt that Aadhaar Act does not violate Privacy, it contradicts itself by imposing limitation of its use.
Aadhaar is a scheme which has been implemented with public funds and if it can be used as a tool for any activity without the Privacy or other Rights being infringed, the logic of restricting its use to only the welfare schemes appears unconvincing.
As regards the enrolment of children, it was held that it can be done with the consent of the parents and on attaining the age of majority, the children may have the option to exit from the Aadhaar if they donot avail the benefits of the scheme to which they are enrolled.
The linking of the Aadhaar number with Mobile has however been declared illegal for the reason that it is not backed by law. This could be one of the aspects that may be considered in some law related to telecom regulations or even the PDPA 2018 itself.
All other objections raised on the validity of processes by which the Act was passed as a Money Bill and linking of Aadhaar with PAN were held to be valid.
As regards opening of bank accounts, mandating that existing account holders need to provide Aadhaar or closing existing accounts if Aadhaar is not linked are not permitted. However for opening new accounts, if there are no alternative less invasive measures, it may be possible to use Aadhaar identification methodology.
The Telecom companies have however been disallowed to mandate linking of the mobile with the account since it is not backed by any law.
Additionally in the event of any offence, Supreme Court wants the consumer to be given the right to take legal action.
This remedy for civil and criminal action was already available under ITA 2000/8 when a wrongful loss had occured due to “diminishing of the value of information residing inside a computer/affecting it injuriously by any means (Section 43/66) and hence there is no additional benefit except adding one more section under Aadhaar Act into a complaint when made.
Disclaimer: The views expressed here and elsewhere on this site are the personal views of Naavi and not the views of any organization or group that he may be associated with.