The review petitions against the September 2018 verdict of the SC upholding the Aadhaar project are listed before a 5 judge bench on 11th January. A Constitution Bench comprising Justices AM Khanwilkar, DY Chandrachud, Ashok Bhushan, S Abdul Nazeer and BR Gavai will consider the petitions at 1:30 PM.
Justices Khanwilkar, Chandrachud and Ashok Bhushan were part of the original bench of the review bench which, on September 26, 2018, decided the case. While Justice Khanwilkar and Bhushan were part of the majority, Justice Chandrachud was the only dissenter in the 5 judge bench.
The majority, which included the then CJI Dipak Misra, upheld the Aadhar scheme by Justices AK Sikri, Khanwilkar and Bhushan, but struck down and read down some provisions of the Aadhaar Act 2016. The SC prohibited the compulsory use of Aadhaar based KYC for mobile connections and bank accounts. The majority judgment authored by Justice Sikri also held that the architecture of Aadhaar, as well as the provisions of the Aadhaar Act, do not tend to create a surveillance State.
The judges also found that it is very difficult to create a profile of a person simply on the basis of biometric and demographic information stored in CIDR. The majority said, insofar as authentication is concerned, there are sufficient safeguard mechanisms.
In the dissenting opinion, Justice Chandrachud said that the entire Aadhar Act to be unconstitutional. He also held that the passing of Aadhaar Act as a money bill was a fraud on the Constitution. He further observed it was worrying that a foreign company has the source code of the Aadhaar project and that there were valid concerns about the infringement of citizen’s privacy.
In Rojer Mathew v. South Indian Bank, a 5-judge bench of the SC doubted the correctness of the interpretation of the majority judgment in K S Puttaswamy v. Union of India which had held that Aadhaar Bill was in substance a Money Bill within the meaning of Art 110(1) of the Indian Constitution.
The Rojer Mathew decision noted that the majority verdict in Aadhaar judgment did not substantially discuss the effect of the word ‘only’ in Article 110(1) and did not examine the repercussions of a finding when some of the provisions of an enactment passed as a “Money Bill” do not conform to Art 110(1)(a) to (g).In 2019, the Parliament passed the Aadhaar Amendment Act 2019 with the stated objective of rectifying the infirmities in the Act which the Supreme Court pointed out. These amendments also allowed the ‘voluntary’ use of Aadhaar for mobile-sim authentication and Bank KYC purposes. The validity of these amendments has also been called into question before SC.