Clause in Aadhaar Act Badly Drafted, says Supreme Court

Clause in Aadhaar Act Badly Drafted, says Supreme Court

Section 59 is badly drafted... It is very difficult for us to recognise that fundamental rights can be compromised or waived: CJI Dipak Misra Should court not accept the deemed valid clause, all pre-Act Aadhaar would become suspect in the eyes of the law

The Supreme Court on Tuesday faulted a clause in the Aadhaar Act, which validated all biometric enrolments even before the law was enacted with retrospective effect, as badly drafted and too wide in a prima facie observation.The Act came into effect only in 2016, though the government started enrolling people under its Aadhaar scheme in 2010. Should the court not accept the deemed valid clause, all pre-Act Aadhaar would become suspect in the eyes of the law.

Section 59 of the Act deems consent in all pre-2016 cases where biometrics were collected without the backing of any law. “Section 59 is badly drafted,” observed Chief Justice of India Dipak Misra, who is heading a bench of five judges hearing a batch of petitions challenging the legality of Aadhaar. “It is very difficult for us to recognise that fundamental rights can be compromised or waived,” he said, referring to the deemed consent clause.

The bench was told that Aadhaar was collected in the initial phase in 2010 with enrolment forms that had no reference to biometrics.“Though it was not in the forms, no one was enrolled for Aadhaar without biometrics,” attorney general KK Venugopal told the bench. The Aadhaar enrolment form was changed thrice, the court was told. The reference to biometrics came later.

The AG is now arguing against the court declaring all pre-2016 Aadhaar illegal and invalid. Should the court do so, all the biometrics collected from people before that would have to be destroyed. The government wants to avoid this.“This would be an exercise in futility,” the AG said. “The government will then have to collect the data all over again.”

The AG had so far argued that in the absence of a law, people voluntarily enrolled themselves for Aadhaar. There was no fundamental right to privacy then, he argued. Consequently, no eyebrows can be raised about the alleged intrusion into privacy.He also argued that assuming that it was a precious legal right, the state could for legitimate reasons put reasonable restrictions on such rights. The AG concluded his arguments on Tuesday. Additional solicitor general Tushar Mehta continued arguments defending the scheme as necessary to protect India’s financial security. He will continue arguments Wednesday

The Economic Times, New Delhi, 11th April 2018