Aadhaar is a 12-digit unique-identity number issued to all Indian
residents based on their biometric and demographic data. The data is collected
by the Unique Identification Authority of India (UIDAI), is a statutory
authority established in January 2009 by the Government of India, under the
Ministry of Electronics and Information Technology, under the provisions of the
Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and
services) Act, 2016.
Aadhaar is the world’s largest biometric ID system, with over 1.171
billion enrolled members as of 15 Aug 2017. As of this date, over 99% of Indians
aged 18 and above had been enrolled in Aadhaar. World Bank Chief Economist Paul Romer described Aadhaar as “the most sophisticated ID programmed in [the]
Prior to the enactment of the Act, UIDAI functioned as an attached
office of Planning Commission (now NITI Aayog) since 28 January 2009. On 3 March
2016, a money bill was introduced in the parliament to give legislative backing
to Aadhaar. On 11 March 2016, the Aadhaar (Targeted Delivery of Financial and
other Subsidies, benefits and services) Act, 2016 was passed in the Lok Sabha.
On 26 March 2016, this Act was notified in the Gazette of India. In June 2017,
the Home Ministry clarified that Aadhaar is not a valid identification document
for Indians traveling to Nepal and Bhutan.
As of April 2017, a Constitution Bench of the Supreme Court of India is
considering the legal validity of Aadhaar on right to privacy grounds. On 23
September 2013, the Supreme Court issued an interim order saying that “no person
should suffer for not getting Aadhaar” as the government cannot deny a service
to a resident if she does not possess Aadhaar, as it is voluntary and not
mandatory. In another interim order on 11 August 2015, the Supreme Court of
India ruled that “UIDAI/Aadhaar will not be used for any other purposes except PDS, kerosene and LPG distribution system” (which order was later amended to
include Mahatma Gandhi National Rural Employment Guarantee Scheme, all types of
pensions schemes, employee provident fund and the Prime Minister Jan Dhan Yojana),
and made it clear that even for availing these facilities Aadhaar card will not
be mandatory. On March 2017, the Supreme Court affirmed that Aadhaar cannot be
mandatory for availing benefits under welfare schemes, though it can be
mandatory for other purposes (such as income tax filings, bank accounts etc.).
On June 9, 2017 the Supreme Court of India partially read down a legal provision
(Section 139AA of the Income Tax Act) which mandated as individual to link their
Aadhaar for filling their Income Tax Returns.
Some civil liberty groups, like Citizens Forum for Civil Liberties and Indian
Social Action Forum (INSAF), have opposed the project over privacy concerns.
Format of Aadhar Card:
The full Aadhaar card is a colour document (referred to as the Aadhaar letter),
often printed on glossy paper that is also obtainable electronically online via
PDF. According to the government, a black and white version of the document is
valid. It is printed on A4 paper and folded in half in portrait (to produce a
front and black) that is approximately 93mm by 215mm once margins are removed.
Some agencies may laminate the document for no more than 30. It has a cut off
card sized portion at the bottom with the key information. Some individual
agencies produce and charge for a PVC card version (cut-off of the bottom
section) falsely marketed as a smartcard despite caution from the government.
Title and Content Layout:
Biometric information includes photograph, fingerprints, iris scan, and “other
biological aspects. In the Aadhaar Act, a person’s “identity information” has
two components: demographic information and biometric information. Demographic
information includes details “related to the name, date of birth, address and
other relevant information of an individual,” collected when an Aadhaar number
is issued. Demographic information explicitly precludes a few specific details,
such as caste and religion, but otherwise, it is basically whatever the
# “Attributes of an individual” that the government may decide. The Act also
uses the concept of “core biometric information,” which is defined in the same
way expect that the word “photograph” is omitted.
# Section 8, it is concerned with “authentication”. On this, there was a massive
foundational change between an earlier draft of the Act (the National
Identification Authority of India Bill, 2010) and the unalterable version, the Aadhar Act 2016.
# In the Aadhaar Act, however, authentication is a completely different thing.
When it submits an Aadhaar number, the “requesting entity” (any “agency or
person” who is willing to pay the fees) can now ask for any aspect of that
person’s identity information, expect for the core biometric information.
Everything else, including photograph, can be shares by UIDAI with the
# To be the fair, two safeguards are in place in the Aadhaar Act. One is that
the requesting entity must inform you about the use it proposes to make of your
identity information. The second safeguard is that the requesting entity cannot
publish or display your Aadhaar number.
# The Aadhaar Act has been brought about to give the legislative backing to the
individual identity program which aims to provide a unique identity number to
the entire population of India. The rationale behind this scheme is to correctly
identify the beneficiaries of government schemes and subsidies gets credited
directly into the bank account of the recipients thorough its JAM initiative
(Jan dhan bank account-Aadhaar number-mobile number).
Aadhaar-enabled biometric attendance systems:
# In July 2014, Aadhaar-enabled biometric attendance systems were introduced in
government offices. The system was introduced to check late arrival and
absenteeism of government employees. However, in October 2014, the website was
closed to the public but it is now (as on 24March 2016) active and open to
Other Uses by central government agencies
# In November 2014, it was reported the Ministry for External Affairs was
considering making Aadhaar a mandatory requirement for passport holders. In
February 2015, is was reported that people with Aadhaar number will get their
passports issued within 10 days, as it allowed the verification process to be
easier by checking if applicant had any criminal records in the National Crime
Records Bureau database.
# In October 2014, the Department of Electronics and Information Technology said
that they were considering kinking Aadhaar to SIM cards. The Digital India
project aims to provide all government services to citizens electronically and
is expected to be completed by 2018.
# On 3 March. the National Electoral Roll Purification and Authentication
program (NERPAP) of the Election Commission was started. It aims to link the
Elector’s Photo Identity Card (EPIC) with the Aadhar number of the registered
voter. It is aims to create an error-free voter identification system in India,
especially by removing duplications.
# The biggest danger of Aadhaar: its power as a tool of mass surveillance. This
is, possibly, far more serious than the issue of confidentiality of the
database. Once Aadhaar becomes an all-purpose identification tool, your life
will be as transparent to the state as a contact lens. Details of your railway
bookings, phone call records, and financial transactions and so on will be
accessible to the government.
# The Right to privacy is not specifically referenced to the Constitution but it
is considered as ‘penumbral right’ under the Constitution i.e. a right that has
been declared by the Supreme Court as implicit to the Fundamental Right to Life
and Liberty. In addition, various statues contain provision, which either
implicitly or explicitly preserves this right. The following sections provide an
overview of both constitutional and statutory safeguards to privacy in India.
# The development of the right to privacy in India could be traced from the case
of M.P. Sharma & Others v. Satish Chandra & Others.
# But in the case Govind vs. State of M.P. The Supreme Court took a view point
which represents a paradigm shift in perspective from their rulings
# Right to privacy was upheld again by the Supreme Court in Ram Jethmalani v.
# In the case of Justice K.S. Puttaswamy v. U.O.I a scheme propounded by the
Government of India popularly known as “Aadhaar Card Scheme” was under attack on
Infringment of Individual’s Right To Privacy And Dignity:
It is important to note that the main privacy concerns brought by the UID
project are: territorial and data privacy. The risk tht the UID poses to an
individual’s privacy is enormous, as information that is now scattered in the
public domain will be brought into one point of convergence through the UID.
Authorities could misuse this information. Further, there are issues of privacy
infringement due to the use of biometric information in the project. The
Collection of, and identification based on biometric information could be
understood as a breach of one’s territorial privacy and one’s data privacy.
Lack of legislation:
# The Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and
Services) Act, 2016 (the “Aadhaar Act”) was introduced in the Lok Sabha by
Minister of Finance, Mr. Arun Jaitley, in on March 3, 2016, and was passed by
the Lok Sabha on March 11, 2016. It was sent back by the Rajya Sabha with
suggestions but the Lok Sabha rejected those suggestions, which means that the
Act is now deemed to have been passed by both houses as it was originally as a
# In late November 2012, a former Karnataka High Court judge, Justice K. S.
Puttaswamy, and a lawyer, Parvesh Khanna, filed a Public Interest Litigation (PIL)
against the government in the Supreme Court of India. They had contended that
government was implementing the project without any legislative backing. They
pointed out that the National Identification Authority of India Bill, 2010 which
introduced in the Rajya Sabha was still pending. They said that since UIDAI was
running on only an executive order issued on 28 January 2009, it cannot collect
biometric data of citizens as it would be a violation of privacy under Article
21 of the Constitution.
# On 23 September 2013, the Supreme Court issued an interim order saying that
“no person should suffer for not getting the Aadhaar card despite the authority
making it mandatory”. The court noted that the government had said that Aadhaar
# On 2 February 2015, the Supreme Court asked the new government to clarify its
stance on the project. This was in the response to a new PIL filed by Mathew
Thomas, a former army officer. Thomas had claimed that the government was
ignoring previous orders while pushing ahead with the project and that the
project was unconstitutional as it allowed profiling of citizens. The government
in a reply on the 12 February said that it will continue the project. On 16
July 2015, the government requested the Supreme Court to revoke its order,
saying that it intends to use Aadhaar for numerous services.
# On 11 August 2015, the Supreme Court directed the government to widely
publicize in print and electronic media that Aadhar is not mandator for any
welfare scheme. The Court also referred the petitions claiming Aadhaar is
unconstitutional to a Constitutional Bench.
Supreme Courts Verdict:
New Delhi: The Supreme Court on August 24th ruled that all Indians enjoy a
fundamental right to privacy, a right that is protected under Article 21 of the
Constitutional Validity of Aadhaar Programme:
The Aadhaar card programmed does not become unconstitutional due to privacy
being held as a fundamental right. While the right to privacy case stemmed from
a batch of petitions challenging the constitutional validity of the
identification scheme, Aadhaar by itself is out of the scope of the judgement.
A quick recounting of history is important in understanding this.
In October 2015, a Supreme Court constitution bench led by the then Chief
Justice H.L. Dattu declared that the “Aadhaar card was purely voluntary” and
could not be made mandatory. The bench further stated that the voluntary nature
of Aadhaar would continue to be in place until a larger Supreme Court bench of
judges decided whether the biometric authentication scheme violated the privacy
It took the Supreme Court almost two years to set up that larger bench of five
justices to examine whether Aadhaar c=violated the right to privacy. What
happened during the initial July 2017 hearings is that both former attorney
general Mukul Rohatgi and current attorney general K.K. Venugopal argued that
the right to privacy was not fundamental right. Venugopal cited the 1963 Kharak
Singh case to emphasise that there was no right to privacy under Article 21 and
Article 19 (1) (d) of the constitution.
The attorney general’s argument is what kicked off the nine-judges bench which
examined whether privacy could be a fundamental right. The five-judge bench
hearing on Aadhaar was stopped and a new one started.
On Thursday, the nine-judge bench delivered its judgement which dismantled the
attorney general’s arguments and overruled previous judgements in the Kharak
Singh and MP Sharma cases.
The biggest immediate impact of the privacy judgement on Aadhaar is
that it will end the legal gridlock over the fundamental nature of a ‘right to
privacy’ and hopefully move along the court hearings on the validity of the
government’s identification scheme.
The field is clear for the Aadhaar hearings, which were
cut short, to resume under a smaller three-judge or five judge bench.
According to legal experts, this judgement might indicate some momentum for the
Aadhaar camp, but the true test of a fundamental right to privacy will be when
it is applied in specific legal cases. There are many upcoming cases out of
which the Aadhaar hearings are one.
• The rampant corruption evident at every sector of the government organization
and the objective the UID scheme sought to achieve it is necessary that we find
a middle path so that this scheme can be implemented. This section provides
important measures that need to be taken in tackling the issues raised by UID
could be summed up as follows:
• As per the judicial decision the right of privacy has been held to be implicit
in the Article 21. “21-B.
1.Every person has a right to respect for his private
and family is home and his correspondence.
2. Nothing in clause (1) shall
prevent the state from making any law imposing reasonable restrictions on the
exercise of the right conferred by clause (1), in the interests of security of
the state, public safety or for the prevention of disorder or crime, or for the
protection of health or morals, or for the protection of the rights and freedoms
• There is need for a comprehensive privacy legislation that would ensure the
protection of personal and sensitive data of people. There is also the need for
an established regulatory body.
• About to The Aadhar Act,2016-there is a need for a specific provision that
states clearly that no services or facilities shall be denied to citizen on
basis of lack of a UID number.
The above discussion on the right of privacy and dignity with respect to UID
clearly shows that the UID, if brought into practice, would discount the right
to privacy and dignity guaranteed under the Constitution, and would cause
serious implications upon the freedom and choices of the Indian citizen. The UID
could also lead to a situation of increased state surveillance, causing an
invasion of the right to privacy, and in turn affecting the dignity of
individuals. Furthermore, the developmental claims by the UID of security and
administrative efficiency cannot be a valid justification for infringement on
the right of life under the Article 21 and the right to freedom of expression
and movement as provided in the Article 19 of the Constitution.
Information, they say, is power. Allowing governments to exercise this power
over us without thought for the rule of law constitutes the ultimate submission
possible in a democratic nation-state. And, without the prospect of good laws we
will all be subordinate to a new national imagination of control and monitoring,
surveillance and profiling. If allowed to come to pass, this will be a betrayal
of the foundational idea of India as a free and demographic republic tolerant of
dissent. Also, the need for privacy law cannot be overstated. With all our lives
being splattered over the media be it through social networking sites or the spy
cameras, we need protection so that we can function in the way we want and not
think of others before our actions. After all, the only ones we owe an
explanation to is ourselves and not to the entire world.