Putting an end to the Aadhaar debate once and for all, the Hon. Supreme Court of India upheld Aadhaar’s constitutional validity through its landmark judgment yesterday.
However, even before the entire judgment was made available to the public yesterday, many media outlets hastily resorted to twisting the verdict – especially the ruling on Section 57 of the Aadhaar Act, 2016 that pertains to permitting private entities (including Corporate Bodies) to access the Aadhaar database for initiating Aadhaar authentication and e-KYC.
In order to truly understand the implications of yesterday’s ruling on Section 57, it is first important to understand this section in TOTO. The section reads “Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law, for the time being in force, or any contract to this effect.”
What this basically means is that Section 57 of the Aadhaar Act permits private entities to use the demographic authentication and e-KYC service of Aadhaar and store the record of the transaction (in form of the response data received from UIDAI as well as the transaction log) in any of the two scenarios mentioned below:
Scenario 1:
If storage of Aadhaar number and the record of the Authentication / e-KYC transaction is mandated by the law (enacted and mandated by the corresponding regulator governing the operations of the authenticating agency).
Scenario 2:
If the authenticating agency is entering into any contract with the Aadhaar holder, and the nature of the contract requires and permits the authenticating agency to access the Aadhaar data of the concerned individual.
Further, before rushing to conclusions, it is important to note that the Hon. Supreme Court has adopted three different courses of action for the contentious provisions of the Aadhaar Act:
Action 1:
“Struck Down” some provisions that were found to be completely unconstitutional.
Action 2:
“Read Down” some provisions that were found to be partially unconstitutional.
Action 3:
“Tweaked” some provisions that should be modified.
The key takeaway of yesterday’s ruling on Section 57 (as mentioned on Page No. 560 of the ruling) is that the Hon. Supreme Court has “Read Down” the section and not completely “struck it down.”
The ruling reads “Insofar as Section 57 in the present form is concerned, it is susceptible to misuse inasmuch as: (a) It can be used for establishing the identity of an individual ‘for any purpose’. 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”.
The ruling further reads, “Apart from authorising the State, even ‘any body corporate or person’ is authorised to avail authentication services which can be on the basis of purported agreement between an individual and such body corporate or person. Thus, this part of the provision which enables body corporate and individuals also to seek authentication, that too on the basis of a contract between the individual and such body corporate or person, would impinge upon the right to privacy of such individuals.”
It is critical to note here that it is this latter part, that the Hon. Supreme Court ruled unconstitutional, and not the entire Section 57.
To simplify, the initial part of Section 57 of the Aadhaar Act that reads “Nothing contained in this Act shall prevent the use of Aadhaar number for establishing the identity of an individual for any purpose, whether by the State or any body corporate or person, pursuant to any law” has been found constitutional by the Hon. Supreme Court.
To sum it up, we would like to unequivocally clarify that private entities shall be permitted to use Aadhaar number for establishing the identity of the Aadhaar Card holder by using UIDAI’s e-KYC and Authentication service if the same is mandated by the law.
Queries / Confusions??? Feel free to get in touch with our colleague Amit Joshi on 9820875525 or 7208155528 or email him on amit@eastcs.com.
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Regards
Team ECS.