Supreme Court / Constitutional Law

Aadhaar Supreme Court Hearing: Shyam Divan's Arguments on Privacy and Biometric Identification

18 January 2018 | Legal position reviewed: 31 October 2026

Supreme Court of India - Aadhaar Constitution Bench hearing

On 18 January 2018, a Constitution Bench of the Supreme Court continued hearing challenges to the Aadhaar programme. Senior Advocate Shyam Divan, appearing for petitioners, questioned the constitutional basis, biometric design, privacy implications and compulsory use of Aadhaar. These were submissions made during a hearing, not findings of the Court. The case was subsequently decided on 26 September 2018.

Legal status: This article records the January 2018 arguments and separately explains the subsequent Supreme Court judgment and legislative changes. The 2018 hearing report should not be read as the law currently in force.

What happened at the January 2018 hearing?

The Attorney General informed the Court that numerous Aadhaar-related writ petitions were pending and suggested fixing time limits for counsel. Mr. Divan said the challenge was complex because the programme began before enactment of the Aadhaar legislation and involved multiple administrative and statutory measures. He referred to petitions filed in 2013, 2016 and 2017.

He argued that Aadhaar could facilitate tracking of individuals, affect autonomy and dignity, and lead to exclusion from essential services. He also questioned the legislative classification of the Aadhaar Act as a Money Bill, the impact of earlier interim orders and the extension of Aadhaar requirements to PAN, mobile connections, banking and other services.

Biometric identification and the deterministic versus probabilistic argument

Mr. Divan contrasted a deterministic system, in which a result follows from a definite identity match, with biometric identification and authentication, which can involve statistical thresholds and imperfect matching. Aadhaar enrolment uses demographic information, fingerprints, iris scans and a photograph, subject to applicable exceptions and updated regulations. His concern was that authentication errors might prevent eligible people from receiving services.

He also raised concerns about worn fingerprints among manual workers, repeated authentication attempts, access difficulties for elderly persons and people with disabilities, quality differences between enrolment and authentication devices, and possible misuse or compromise of biometric data. These were concerns advanced by counsel; they do not establish that every Aadhaar transaction is inaccurate or that Aadhaar itself was invalidated.

Background and sequence of legal developments

2009-2010: UIDAI began as an executive initiative, and Aadhaar enrolment commenced before enactment of a dedicated statute.
2013-2015: The Supreme Court issued interim directions on Aadhaar use while constitutional challenges were pending.
2016: Parliament enacted the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.
2017: Petitioners questioned the expanding requirements for linking Aadhaar to PAN, bank accounts and mobile services, as well as biometric and informational privacy.
18 January 2018: The arguments reported in this article were advanced during the Constitution Bench hearing.
26 September 2018: The Supreme Court delivered its Constitution Bench judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India.
2019: Parliament enacted the Aadhaar and Other Laws (Amendment) Act, 2019.
2021: A majority dismissed review petitions concerning the 2018 Aadhaar judgment; Justice D.Y. Chandrachud dissented.

Supreme Court Aadhaar judgment of 26 September 2018

By a 4:1 majority, the Constitution Bench upheld the Aadhaar Act in substantial part, including the use of Aadhaar for qualifying welfare benefits under Section 7, while restricting certain uses and striking down or reading down particular provisions. The majority upheld the Act's certification as a Money Bill. Justice D.Y. Chandrachud dissented on important constitutional questions.

The Court did not accept the argument that the entire Aadhaar scheme must be struck down. It invalidated the statutory basis for compulsory private-sector Aadhaar use under the then Section 57 and rejected compulsory Aadhaar linking for bank accounts and mobile connections under the measures examined. It upheld Section 139AA of the Income-tax Act concerning PAN-Aadhaar linkage, subject to the judgment's reasoning and applicable law.

In 2021, review petitions were dismissed by a majority. For the operative statutory position, the 2018 judgment must be read with later legislation, rules, regulations and applicable judicial orders.

Important Aadhaar Act provisions explained

Provision	Legal meaning and practical significance
Section 3 and Section 3A	Entitlement to obtain an Aadhaar number subject to statutory conditions; special safeguards for children, including consent and options relating to cancellation after majority.
Section 4	Deals with the properties of an Aadhaar number and permitted authentication or offline verification under the statutory framework.
Section 7	Permits Aadhaar-based identity requirements for specified subsidies, benefits and services funded from the Consolidated Fund of India or a State, with alternative viable identification for persons not assigned an Aadhaar number.
Section 8	Regulates authentication by requesting entities, including consent, notice and permissible use of identity information.
Section 8A	Provides a framework for offline verification of Aadhaar numbers.
Sections 28 and 29	Provide confidentiality and restrictions on sharing identity information, particularly core biometric information.
Section 32	Concerns authentication records and the Aadhaar number holder's access to those records.
Section 33	Sets limited statutory circumstances and safeguards for disclosure of protected information.
Former Section 57	The earlier provision permitting Aadhaar use based on contract was invalidated in relevant part by the Supreme Court; Section 57 was subsequently omitted by the 2019 amendment.

For precise wording and the latest amendments, consult the official UIDAI Acts collection and the UIDAI section-by-section Aadhaar Act text.

Privacy, consent and protection against exclusion

The constitutional right to privacy was recognised by a nine-judge Supreme Court Bench in Justice K.S. Puttaswamy (Retd.) v. Union of India in 2017. Aadhaar-related identity verification must operate within constitutional limits and applicable statutory safeguards. The Aadhaar Act provides restrictions on sharing core biometrics, rules for authentication and safeguards for qualifying welfare schemes. The precise availability of alternatives depends on the service and governing law.

For current enrolment and update procedures, see the UIDAI enrolment and update regulations. The UIDAI Circular No. 13 of 2025 also addresses Section 7 and its interpretation for qualifying welfare benefits.

PAN, bank accounts and mobile services

Do not confuse the Supreme Court's rejection of compulsory Aadhaar use for certain bank and mobile requirements examined in 2018 with the separate PAN-Aadhaar linking regime under Section 139AA of the Income-tax Act, 1961 and subsequent tax rules. PAN-related obligations and exemptions must be checked under the income-tax law currently applicable to the taxpayer. Aadhaar authentication or offline verification for financial or telecom services is governed by the specific legal framework applicable to those services; it is not automatically compulsory merely because a provider requests it.

The petitioners' principal concerns in the original report

Whether the Aadhaar programme could operate before adequate statutory backing and whether later legislation could validate earlier actions.
Whether collecting and authenticating biometrics compromised bodily autonomy, informational privacy or personal dignity.
Whether the Money Bill procedure under Article 110 of the Constitution was constitutionally appropriate.
Whether biometric mismatch or insufficient enrolment access could exclude people from essential services.
Whether private enrolment and authentication agencies had adequate accountability and information-security safeguards.
Whether Aadhaar-related measures were consistent with the Supreme Court's interim orders.
Whether biometric identity systems were sufficiently accurate, transparent and secure, particularly when authentication devices differed from enrolment equipment.

The original hearing report also recorded concerns about identity theft, potential national-security risks, information supplied to enrolment agencies and the use of introducers where identity documents were unavailable. These remain part of the historical account of counsel's submissions, rather than independent judicial findings.

Official legislation and judicial materials

This report distinguishes arguments made at the January 2018 hearing from subsequent binding judgments and statutory provisions. For any particular transaction or benefit, consult the latest applicable law, notification and official guidance.