Libertatem Magazine

Supreme Court Upholds The Validity Of Aadhaar But Limits Its Use

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A five-judge constitutional bench of the Supreme Court today upheld the constitutional validity of the Aadhaar Scheme. The apex court in its judgement has listed services for which linking of Aadhaar is not mandatory and strikes down certain provisions (mainly Section 33(2), 47 and 57) including its linking with bank accounts, mobile phones and school admissions.

Facts in Issue:

The petitioners challenged the constitutional validity of the Aadhaar programme that operated between 28.01.2009 till the coming into force of the Aadhaar Act, 2016 on 12.07.2016 and all notifications issued under Section 7 of the Aadhaar Act in so far as they make Aadhaar mandatory for availing of certain benefits, services and subsidies.

Issues before the Court:

Following are the main issues submitted before the Supreme Court.

  1. Whether the Aadhaar Act violates the right to privacy and in unconstitutional on this ground?
  2. Whether children can be brought within the sweep of section 7 and 8 of the Aadhaar Act?
  3. Whether several sections of the act are unconstitutional?
  4. Whether the Aadhaar Act could be passed as ‘Money Bill’ within the meaning of Article 110 of the Constitution?


In 567 page judgement, a five-judge constitutional bench of the Supreme Court today upheld the constitutional validity of the Aadhaar Scheme and stated that it does not violate the Right to Privacy.

The Supreme Court struck down section 57 of the Aadhar Act which allowed private companies to avail Aadhar data. With the SC striking down section 57 other private entities like telecom and e-commerce firms are now barred from asking for Aadhaar.  According to the  judgement:

“Section 57, to the extent, which permits the use of Aadhar by the State or any body corporate or person, in pursuant to and contracts to this effect is unconstitutional and void. Thus, the last phrase in the main provision of section 57, i.e. “or and contract to this effect” is struck down.

Section 5 of the Act provides that the Authority shall take special measures to issue Aadhaar number to women, children, senior citizens, persons with disability, unskilled and unorganised workers, nomadic tribes or to such other persons who do not have any permanent dwelling house and such other categories of individuals as  may be specified by regulations. On turning 18, if a child wants to opt out the Aadhar, she will be given the option to exit. Currently, that provision is absent in the act. According to the judgement:

“Parental consent for providing biometric information under Regulation 3 and demographic information under regulation 4 has to be ready for enrolment of children between 5 to 18 years to upheld the constitutionality of regulation 3 and 4 of Aadhaar Act, 2016”

However, Aadhaar is not needed for admissions in schools and it is no more compulsory to show Aadhaar in CBSE, UGC and NEFT examinations. Aadhaar Act has been rightly passed as Money Bill. The decision of Speaker certifying the Aadhaar Bill, 2016 as Money Bill is not immune from Judicial Review. However, the court held that Section 139­AA does not breach the fundamental right to privacy as per privacy judgement in Puttaswamy case and made mandatory to link PAN card with Aadhaar. Aadhaar is necessary for availing welfare schemes and subsidies given by the government.

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