---
abstract: |
  The majority opinion makes it clear that Aadhaar may only be used by
  the government, and not by private parties
archive-url: "https://web.archive.org/web/20230908220703/https://www.livemint.com/Opinion/M07jQ3IQzuunRiGUKUu5LN/Aadhaar-verdict-many-challenges-still-remain.html"
author:
- Pranesh Prakash
authors:
- Pranesh Prakash
categories:
- Privacy
- Identity
citation:
  abstract: The majority opinion makes it clear that Aadhaar may only be
    used by the government, and not by private parties
  accessed: 2019-01-12
  archive: "https://web.archive.org/web/20230908220703/https://www.livemint.com/Opinion/M07jQ3IQzuunRiGUKUu5LN/Aadhaar-verdict-many-challenges-still-remain.html"
  author: Pranesh Prakash
  available-date:
    date-parts:
    - - 2018
      - 9
      - 26
    iso-8601: 2018-09-26
    literal: 2018-09-26
    raw: 2018-09-26
  citation-key: prakashAadhaarVerdict2018
  container-title: Mint
  issued:
    date-parts:
    - - 2018
      - 9
      - 26
    iso-8601: 2018-09-26
    literal: 2018-09-26
    raw: 2018-09-26
  language: en
  license: Creative Commons Attribution-NonCommercial 4.0 International
    License (CC-BY-NC)
  title: "Aadhaar verdict: many challenges still remain"
  title-short: Aadhaar verdict
  type: article-newspaper
  URL: "https://www.livemint.com/Opinion/M07jQ3IQzuunRiGUKUu5LN/Aadhaar-verdict-many-challenges-still-remain.html"
comments:
  hypothesis:
    theme: clean
date: 2018-09-26
engines:
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license:
  text: CC BY-NC 4.0
  type: creative-commons
  url: "https://creativecommons.org/licenses/by-nc/4.0/"
listing-page: ../press.html
original-url: "https://www.livemint.com/Opinion/M07jQ3IQzuunRiGUKUu5LN/Aadhaar-verdict-many-challenges-still-remain.html"
publication: Mint
title: "Aadhaar verdict: many challenges still remain"
title-block-categories: true
toc-title: Table of contents
---

------------------------------------------------------------------------

A retired judge, multiple Magsaysay award recipients and a retired army
major general, among others, became unlikely allies in the fight against
Aadhaar at the Supreme Court. The constitutional challenge against
Aadhaar also led to the landmark judgment in 2017 on the Right to
Privacy.

Only one judge was common between the Right to Privacy judgment and the
judgment on the constitutional validity of Aadhaar---Justice D.Y.
Chandrachud. He held the entire Aadhaar project to be unconstitutional
on multiple grounds, including for violation of privacy.

However, a majority of four judges held that the Act and the national
biometric identity project was constitutional by and large, and allowed
the mandatory collection of biometrics by the government.

Effectively, it also allowed the government to force us to provide our
Aadhaar numbers to receive subsidies (though not for rights, which they
unfortunately see as distinct), or for purposes that meet the three-fold
"legality-necessity-proportionality" test, which mandatory linking of
Aadhaar with PAN apparently does. The majority opinion written by
Justice A.K. Sikri, however, does fundamentally change Aadhaar.

The Congress has long accused the Bharatiya Janata Party-led National
Democratic Alliance of changing the mandate of Aadhaar from a
welfare-delivery aid and turning it into a gargantuan mass surveillance
machine by linking it to everything and allowing even private parties to
demand your Aadhaar number.

However, there is no function-creep. Such uses of Aadhaar were
envisioned even in November 2009, when a 40-page "working paper", which
was marked "confidential", was circulated to the participants of a
workshop held by the then-nascent UIDAI. Aadhaar, from the very
beginning, even when it was "UID", had always been envisioned as an
"identity infrastructure" project, which the state as well as the
private entities could use, and which other IDs can be built on top of.

This vision of Aadhaar has been severely curtailed by the Supreme Court.
The majority opinion makes it clear that Aadhaar may only be used by the
government, and not by private parties, although the way the justices
have chosen to do that, by reading down Section 57 of the Aadhaar Act,
is not, in this author's view, ideal.

In a way, the UIDAI seems to have made peace with this even before the
judgment came out. The Justice B.N. Srikrishna Committee, which had
UIDAI's chief executive officer as a member, had recommended amendments
to the Aadhaar Act, which would have had a similar effect of preventing
private parties from authenticating people's identities by asking the
UIDAI.

There are many challenges that still remain. First, is the impact of
mandating Aadhaar on the poor: Rather than enabling easier access, it
ends up harming them by denying them their rights. The second is that of
privacy. We need a strong data protection law that prevents the
government and private parties from non-consensually using Aadhaar---the
Justice Srikrishna recommendations provide a good starting point for
that. Lastly, the risks of a nation- or state-wide biometric database
remains. They could treat de-duplication as a one-time exercise, and
seek to improve birth registration and use birth certificates as a way
of ensuring uniqueness of ID. That way, governments could destroy their
biometric databases, yet still keep a unique national ID.

*Pranesh Prakash is an Affiliated Fellow at the Yale Law School's
Information Society Project.*