The fate of Aadhaar, the world’s largest and most ambitious social engineering experiment ever attempted, was finally decided. A five-judge Bench of the Supreme Court gave a majority judgment declaring that the Aadhaar project is here to stay. But with a few modifications. While one of the judges, Justice DY Chandrachud, was of the opinion that Aadhaar should be scrapped in toto, the other four judges said otherwise.

Before we get into what the 1,488-page judgment has in store, let’s answer a few basic questions that everyone is asking:

Who needs to get an Aadhaar now?

1. People who have to file income tax returns.
2. People who want to avail government subsidies.

Who doesn’t need to get an Aadhaar?

1. People who don’t need to file taxes OR avail government benefits.
2. Children below the age of 18. If they get an Aadhaar, parental consent is needed and they have an option to opt-out when they turn 18. But then, they want to avail subsidies OR file taxes after attaining adulthood, still need Aadhaar.

Who can ask for your Aadhaar?

1. Government entities where you go to get subsidies or benefits.

Who cannot ask for your Aadhaar?

1. Private entities
2. Banks
3. Mobile companies

Is Aadhaar mandatory now?

Not explicitly. But you don’t need to get it only if you don’t take subsidies or pay income tax. So for all intents and purposes, everyone needs to get it.

Now that we have this out of the way, let’s dive into the judgment.

Aadhaar does not violate the Fundamental Right to Privacy

This was the major question that the Supreme Court was dealing with. Petitioners had argued that Aadhaar takes away the right to privacy by taking sensitive information from them and using it without their consent in all sorts of ways. The UIDAI responded to this by stating that Indian citizens don’t have a Right to Privacy. Because of these opposing views, a nine-judge Bench was set up to answer this one singular question. They ruled that we do indeed have a Right to Privacy. Joy to the world!

But this five-judge Bench, which was supposed to apply the larger privacy judgment to Aadhaar, seems to think that the project does not violate our right to privacy. Their argument was that Aadhaar offers dignity to citizens as opposed to taking it away and violating their right to liberty.

The aspect that the Bench did agree on was that Aadhaar being used by private companies does violate our right to privacy. So they slashed out the part in the Aadhaar Act which allowed private entities to use data for offering their services. Private players cannot make Aadhaar mandatory as an ID proof for offering their services.

This is good news because a public-funded programme was increasingly becoming a tool to exploit by private companies for their profit and the court has put a stop to that. The message is clear: It’s a programme meant to enable public welfare, so use it for that and nothing else. My guess is that all this support from the tech community, who essentially were also building products on top of Aadhaar, will now dwindle out. If there is no profit, why waste time, eh?

Aadhaar does not lead to exclusion

One of the biggest problems with Aadhaar, which has been consistently pointed out by petitioners and the media, is that it leads to exclusion. People who are dependent on the government for their basic needs through welfare are facing roadblocks because of Aadhaar. There is a multitude of errors that have been reported, which have even led to a few tragic deaths, including that of 11-year-old Santoshi Kumar from Jharkhand.

The Supreme Court, however, said they cannot scrap the project for the sake of the minority that is being excluded. According to them — and this is based on what the UIDAI has informed them — Authentication accuracy of Aadhaar is 99.7 per cent so they cannot scrap the project or make it non-mandatory for the sake of the 0.3 per cent.

Here’s an excerpt from the judgment which conveys their sentiment on the subject. “In this scenario, if the Aadhaar project is shelved, 99.76% beneficiaries are going to suffer. Would it not lead to their exclusion? It will amount to throwing the baby out of hot water [sic] along with the water. In the name of 0.232% failure (which can, in any case, be remedied) should be revert to the pre-Aadhaar stage with a system of leakages, pilferages and corruption in the implementation of welfare schemes meant for marginalised section of the society, the full fruits thereof were not reaching to such people?”

The Court said they are not ignoring or trivialising the exclusion argument though. They have asked the government to fix the implementation problems and make it possible for people to use alternative IDs when getting welfare, just so they are not excluded.

Aadhaar Act can be a Money Bill

(If you want a backgrounder on the Money Bill, do read this piece I had written way back in 2016 when Aadhaar [Targeted Delivery of Financial and Other Subsidies, Benefits and Services] Act, 2016 was passed in Parliament.)

One of the major challenges to Aadhaar was the Act itself and the way it became a law in Parliament. It was passed as a Money Bill, allowing the government to just clear it through Lok Sabha and completely ignore the Rajya Sabha. The upper house still does not have a BJP majority, by the way.

The problem was obvious. Aadhaar is a mechanism to deliver subsidy, not the subsidy itself so it could not be classified as a Money Bill. So it was challenged. But the Supreme Court did not think so and ruled 4-1 that it is indeed a Money Bill. The one exception was Justice DY Chandrachud, the lone ultra dissenting judge who did not mince any words on this matter.

He clearly stated: “The Rajya Sabha has an important role in the making of laws. Superseding the authority of the Rajya Sabha is in conflict with the constitutional scheme and the legitimacy of democratic institutions. It constitutes a fraud on the Constitution. Passing of a Bill as a Money Bill, when it does not qualify for it, damages the delicate balance of bicameralism which is a part of the basic structure of the Constitution.”

The bold part is for effect. Obviously. But then this opinion only remains an opinion and doesn’t matter. What is worrying is that if Aadhaar was treated as a Money Bill, it has set a giant precedent. Who knows which other legislation will be treated in a similar way, making Rajya Sabha completely irrelevant in multiple future instances. It might be done by the current government or a future one, but this opens up a new legal hellhole for sure.

Aadhaar does not lead to a surveillance state

Another big contention with Aadhaar was that it enables state surveillance on Indian citizens. The Supreme Court, however, disagreed with this and stated that since Aadhaar collects minimal data — demographic & biometric — it does not lead to surveillance. They are satisfied with the case presented by the Government and UIDAI that it is not possible to enable a surveillance state using Aadhaar.

There is a problem here though. Aadhaar itself is just basic information but the databases being connected to it enable 360-degree profiling of citizens. This is already happening in states like Andhra Pradesh where they are creating a State Resident Data Hub (SRDH) which uses Aadhaar data as a base. The SRDH there has gone so far as to enable real-time tracking of citizens and geotagging them. Other states like Karnataka, Tamil Nadu and Telangana are also building similar databases to track citizens. These databases not only collect basic information, which is provided by Aadhaar, but add to it with sensitive information like caste, religion and occupation. In the hands of a particularly unkind Government, these databases can be used against the interests of the citizens and Aadhaar does enable this possibility.

The court, however, is clear in its stand and believe this is not the case. They have also mentioned the draft Data Protection law which is going to protect citizen data and prevent it from being misused. The bill has not been introduced yet, but we will see some action on that front soon enough.

The Silver Lining

While the judgment has practically endorsed the usage of Aadhaar by the government, there is a silver lining here. They have made it clear that the state cannot acquire Aadhaar data willy-nilly in the name of National Security and a judicial officer needs to authorise such requests in the future. They have also clarified that Aadhaar cannot be made mandatory for school admissions and matriculation purposes. They’ve also said mobile companies and banks can’t demand for Aadhaar, neither can the government make them do so until they make a specific law in this regard.

The judgment has provided relief to a large section of the society and cleared a lot of confusion. Hopefully, now there won’t be any more mandatory-non-mandatory-not-mandatory drama in the near future.

There is a silver lining here but it is to a very dark dense cloud.