GS-II: A judicial overreach into matters of regulation

Context

The Madras High Court has been hearing a PIL petition since 2018 has asked to link adhar with government identity proof.

Background

In response to a PIL seeking stay on the implementation of the Unique Identification (UID)/Aadhaar Scheme the top court ruling stated that the 23.8 billion dollar scheme, set up by the central government aiming to create a unique identity for each resident of India, through bio-metric – retinal and finger print scans, cannot be made mandatory.

Arguments of the Supreme Court

• Many state governments had been trying to make the Aadhaar card compulsory for services such as gas connections, bank accounts and other such public services. The Maharashtra government had been trying to make the Aadhaar card mandatory for marriage registrations. It infringed on people’s fundamental rights under Articles 14 (right to equality) and 21 (right to life and liberty).

• In many instances, Aadhaar cards have been issued to illegal immigrants and it would legitimise their stay in the country. There have been reports of a huge number of Bangladeshi illegal immigrants being issued Aadhaar cards.

• No citizen should suffer in absence of aadhar number. The Centre and state governments must not insist on Aadhar cards from citizens before providing them essential services.

• Those opting for Aadhaar are required to give personal information including biometrics, iris and fingerprints, which infringes the fundamental right to privacy under Article 21.

• The bench was also informed that there were no safeguard to protect the personal information and no provision for penalties if it comes to public domain.

Availability Unique Aadhar id Number of every Individual:

• It is a 12 digit individual identification number issued by UIDAI (Unique identification authority of India) on behalf of Government of India
• It will serve as identity and address proof anywhere in India. It is available in 2 forms, physical and electronic form i.e. (e-Aadhaar).
• Aadhaar is meant to help benefits reach the marginalised sections of the society and takes into account the dignity of people not only from a personal but also from a community point of view.
• Any resident (a person who has resided in India for 182 days, in the one year preceding the date of application for enrolment for Aadhaar) of India irrespective of age, sex, or class can avail it.
• The UID authority will authenticate the Aadhaar number of an individual if an entity makes such a request.

Challenges apparent in the linking of Aadhaar numbers with social media profiles:

• The private use of the Aadhaar itself has been controversial since the striking down of Section 57 of the Aadhaar Act.
• The limited eKYC provisions, which has been allowed only for banks and other regulated entities are indicative of this.
• The use of Aadhaar, further, has mainly been restricted to receiving government benefits such as the Section 7 benefits.
• It is thus difficult, legally, to find a way to permit Aadhaar-social media linking within the ambit of the Supreme Court’s verdict on Aadhaar.

Conclusion

• The Madras High Court reiterated its stand that Aadhaar cannot be used to authenticate social media accounts.
• It has dismissed the plea made by the PIL petitioners, but given that the Supreme Court is hearing Facebook’s transfer petition, the Madras HC has adjourned the hearing on the WhatsApp traceability case until September 19.
• The Supreme Court said that there is a need to find a balance between the right to online privacy and the right of the state to trace the origins of hateful messages and fake news.
• The government needs to move away from relying on Aadhaar and linking as a one-stop solution for issues ranging from terrorism (SIM linking), money laundering (bank account linking), electoral fraud (voter ID linking) and now cybercrime (social media account linking).