Wednesday, September 26, 2018

SC decision on Article 57 of Aadhaar Act

The SC delivered its judgement few hours ago on the validity of Aadhaar. This is a landmark judgement because it sets right several aspects of the way UIDAI had permitted Aadhaar data to be used.

The most important part of of the judgement is the one pertaining to Article 57 of the Aadhaar Act.

About Section 57, the judgement says (Below excerpt from

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. (b) 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. (c) 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. Even if we presume that legislature did not intend so, the impact of the aforesaid features would be to enable commercial exploitation of an individual biometric and demographic information by the private entities. 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. This part of the section, thus, is declared unconstitutional.

TOI reports that as per the judgement  Private companies can't ask for Aadhaar

IE reports:
Section 57 of the Aadhaar Act refers to the use of Aadhaar data by any “body corporate or person” to establish the identity of an individual. Justice Sikri, in his judgment, found this section to be unconstitutional. It was under this provision that private companies like Paytm and Airtel Payments Bank sought Aadhaar details from customers.

This would suggest that UIDAI should not be sharing any information from the Aadhaar database with any private entities (AUA / KUA). As we had said in an earlier post:

Unique ID Authority of India is "Unique" for one reason. It is the ONLY National Database in the world that GIVES OUT citizen information to private entities. 

Hopefully, the SC order corrects this anomaly and perhaps UIDAI will stop giving information from its Database to private entities.

The other major takeaway from the judgement was that the Supreme Court upheld the validity of Aadhaar. Clearly, every country requires a unique identifier for its residents and so does India. Further more, the SC asked the Centre to bring a robust law for data protection as soon as possible. Again, this is absolutely needed, because there is no control on how entities treat confidential data of third parties.

PS>> Congress Party seems to have a view on section 57 as well, and they are in agreement with us!