Supreme Court upholds Constitutionality of Aadhaar

The historic judgement puts manufactured fears of privacy risks to rest and curtails powers of private entities to avail, use and retain data. The September 26th Supreme Court judgement on the Constitutionality of Aadhaar, following a 38-day hearing spread over four months, has fetched mixed reactions. Primarily, the Apex Court upheld Aadhaar’s Constitutionality and cleared the air saying that nothing in the Aadhaar Act violates the Right to Privacy of an individual. It (Aadhaar) served ‘a bigger public interest’, was ‘unique’, and that unique was ‘better than the best’.
That apart, the Supreme Court struck down Section 57 of the Aadhaar Act which allowed any ‘private entity’ to demand the unique identity document from citizens for the purpose of identification. Section 57 of the Aadhaar Act allowed any private entity to demand the unique identity document from citizens for the purpose of identification. So, legally now, private entities such as telecom companies, e-commerce firms, private banks and other such firms cannot ask for biometrics and other data from consumers for their services. Now, understanding Section 57, its reach and limitations is imperative here. This, when read and interpreted, translates into a ‘public entity’ can yet demand the unique identity document from citizens for the purpose of identification. That Aadhaar will be used for identification, but only by public entities, has been laid down in law.

The judgement also maintained that, with regard to opening bank accounts or to procure mobile phone connections, Aadhaar cannot be made mandatory. This does not rule out the use of Aadhaar for opening bank accounts. It only makes it optional and not mandatory for those opening bank accounts or procuring mobile phone connections.

Aadhaar has, for long, been required to access government benefits whose funding comes from the consolidated fund of India, such as the public distribution system (PDS) of food benefits and the LPG cooking-gas subsidy. The Supreme Court rejected the petitioners’ claims that this requirement was leading to exclusion owing to authentication failures.

Also, the court struck down the provision of the Aadhaar Act which stated that individuals’ personal data could be disclosed if directed by an officer of the rank of joint secretary or higher. This, directly and in no unequivocal terms, strengthens the privacy of personal data.

Yet, the Supreme Court held that PAN-Aadhaar linkage will go ahead by upholding Section 139AA of the Aadhaar Act, which declares that individuals’ Permanent Account Numbers (PAN), which are required for filing income taxes, must be linked with Aadhaar.

It also quashed the populist view held by Aadhaar critics that passing Aadhaar Act as money bill should not have been allowed to be classified under the criteria and concurrently fast-tracked by upholding the validity of the Aadhaar Act passed in 2016 after being introduced as a Money Bill.

Those who had linked their biometric details to banks and telecom service providers through e-KYC or c-KYC process, could delink their Aadhaar number from bank accounts or mobile phone numbers for long, even before the Supreme Court ruling came on September 26, 2018.

The ‘Compendium of Regulations, Circulars and Guidelines’ for authentication of Aadhaar-based e-KYC, an Aadhaar number holder is entitled to delink his biometric details shared with any authorised agency or service provider. You may download ‘Compendium of Regulations, Circulars and Guidelines’ here.

Aadhaar (Authentication) Regulations 2016, Section 16 (5) lays down that, ‘The Aadhaar number holder may, at any time, revoke consent given to a KUA (KYC User Agency) for storing his e-KYC data or for sharing it with third parties, and upon such revocation, the KUA shall delete the e-KYC data and cease any further sharing.’

The 1,448-page Supreme Court verdict on Aadhaar was historic as it quashed fears of personal privacy and data being compromised. In a clean sweep, the Apex Court rubbished politically-manufactured views of privacy risks and ensured that rights of banking and communication, fundamental to modern-day living, were not conditional to the provision of Aadhaar details.

To delink Aadhaar from services

Now, as provided legally, an Aadhaar Card holder may, if she/he wishes to delink his/her biometric identification details from banks and mobile service providers, proceed accordingly.

In order to delink Aadhaar Card from your mobile wallet

Customers may call on the required customer care numbers of private wallet firms such as Paytm. The customer must request the customer care service representative to send an e-mail to unlink Aadhaar.

The customer will then receive an e-mail which will ask him/her to attach a clear picture of his/her updated Aadhaar Card. The customer is required to reply to the mail with the picture of the Aadhaar card. The private wallet firm will send a mail confirming that Aadhaar will be unlinked within 72 hours

In order to delink Aadhaar details from a bank account

To delink Aadhaar from a bank account, customers have to visit their bank branch, ask for a physical form to unlink Aadhaar. Fill it duly and submit the form to the bank. And, the Aadhaar details will be delinked within 48 hours. The customer may check on the status of the delinking through phone banking after 48 hours have lapsed.

The process for delinking Aadhaar details from a mobile service provider hasn’t been laid down as yet but customers may approach a physical outlet or raise the query through customer service numbers to avail details while citing the Supreme Court judgment and concurrent rights to delink Aadhaar details from the mobile service provider in question.

Legal remedies available for failure to delink

There are a host of remedies available to those affected. Apart from the internal bank processes and Consumer Forum remedies available since the Aadhaar Regulations were laid down through the Act in 2016, the Supreme Court judgement provides affected customers the option of initiating proceedings for Contempt of Court now.

Firstly, affected customers should approach the Nodal officer of the entity in question and detail their complaint before escalating it to the Appellate Authority provided and the Banking Ombudsman provided by the Bank. The Banking Ombudsman are known to close cases and reject complaints should another regulator be involved, so customers need to ensure that they take that route in isolation before approaching another regulator.

Customers affected adversely by failure or refusal to delink Aadhaar details from the entity in question can approach a relevant District Consumer Forum and file a complaint for ‘deficiency in service’ by the ‘service provider’ who will have to comply legally and provide redress according to the procedures laid down. The District Consumer Forum verdict, if unfavourable, may be appealed against in a State Consumer Forum and then, finally, at the National Consumer Forum in Delhi.

Any forceful linking or failure to delink the Aadhaar Card details by a mobile service provider, a payment merchant or a bank can now, following the Supreme Court judgement on Aadhaar, be held in direct Contempt of Court throwing open the option for complainants to file for Contempt petitions, should an entity refuse to comply by the directions laid down in the judgement.