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“Only those who risk going too far, can possibly know how far one can go” - T.S. Elliot

The above quote is exactly what the Government of India is trying to achieve since the past one year. Aadhaar is being made mandatory for bank accounts, Income tax returns, mobile numbers etc. Various authorities such as banks, post offices, insurance companies, telecom companies etc are sending repeated SMSs or emails to link Aadhaar or else the facilities provided by them will be deactivated.

Currently, there are more than 1.17 billion Aadhaar holders in the country. The Aadhaar was initially conceptualized only to pass on the benefits of the government to the common man such as LPG subsidy money directly transferred to a bank account which is Aadhaar-linked, digital life certification for pensioners etc. But over a period of time usage of Aadhaar has moved from being voluntary to mandatory.

On 24 August 2017, the apex court of India passed a landmark judgement, wherein it was held that privacy is a fundamental right under the Constitution with reasonable restrictions. Now that there is a standard i.e. the right to privacy, the government will have to convince the court that privacy concerns surrounding Aadhaar, fulfill the test of reasonable restriction.

A few days ago, a senior government official stated it will give 3-6 months to link the biometric identifier Aadhaar with PAN in case the apex court rules in its favour, after which it may cancel all PANs that have not been linked. As of November, 13.28 crore out of 33 crore PANs have been linked to the 12-digit Aadhaar. 

The pace at which Aadhaar is being made mandatory, it seems that the Supreme Court will most likely to rule in favour of Aadhaar. The government will simply argue that sufficient efforts have been made to link Aadhaar to bank accounts, PAN card, mobile numbers etc. It is a method to ensure a unique identity of the individual and provide benefits of the government to the common man. Moreover, Government will state that Aadhaar will fulfil the test of reasonable restriction and hence right to privacy will not be violated.

Now some people may think, what will happen if the database of the Government gets hacked or the government decides to monetize the data it has on hands? The big question is: Can the people sue their own government? The answer is 'NO'. This is because even though Article 300 of the constitution gives the people the right to sue their government, it may not be possible to sue the government for the performance of "sovereign functions". Now providing Aadhaar card by the Government to the people is itself a sovereign function. Activities surrounding the use of Aadhaar if they benefit the citizens are also sovereign functions of the government. If not, government will ensure that the law is amended to make all activities surrounding Aadhaar "sovereign functions".  As a result, the fate of common man is in the hands of the government !!

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Category Corporate Law, Other Articles by - Craig Dsilva 



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