Chief Justice of India (CJI) Dipak Misra’s last week in office, from September 24 to October 1, saw a number of landmark judgments by the Supreme Court that have the potential to change the future of the country in myriad ways. Of these, the judgments decriminalising adultery and the lifting of the bar on menstruating women from worshipping at Sabarimala, Kerala, will, no doubt, be hailed by those who want India to get rid of gender discrimination in both private and public spaces.
On the other hand, the judgments excluding the creamy layer from the purview of reservation for Scheduled Castes and Scheduled Tribes and declining the plea to direct the Election Commission to debar candidates facing heinous criminal charges from contesting elections, its refusal to ensure that an independent probe was conducted into the arrests of prominent civil society activists and its failure to reverse a previous ruling of the court declaring that mosques were not an essential aspect of Islam will be seen as setbacks to movements seeking to ensure greater equity, fairness and justice in our lives. The Supreme Court’s judgment upholding the validity of the Aadhaar scheme and the Act, delivered by a five-judge Constitution Bench on September 26 by a majority of 4:1, however, has grave implications for the future of the country. While the majority, comprising the CJI Dipak Misra, Justice A.K. Sikri, Justice A.M. Khanwilkar and Justice Ashok Bhushan, held that the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, is constitutional, it struck down/read down individual sections of the Act and the UIDAI (Unique Identification Authority of India) Regulations as unconstitutional.
The majority judges pronounced two judgments, one by Justice Sikri for himself, the CJI and Justice Khanwilkar, and another by Justice Bhushan, who concurred with the majority. Justice D.Y. Chandrachud dissented from the majority and gave reasons for striking down the Act. While the majority judgment is, of course, binding, the dissenting judgment has great persuasive value, and as Prasanna S. points out in a separate article, on issues where both the majority and the dissenting judgments agree, the directions given by the latter too are likely to be binding.
The majority judgment’s refusal to strike down Section 7 of the Act, which makes Aadhaar mandatory for availing oneself of state subsidies and benefits, was a huge disappointment. The petitioners were concerned that the collection of biometrics and demographic data under the scheme and the Act would lead to profiling of individuals and create a surveillance state, thus violating the fundamental right to privacy, which received unequivocal support from a nine-judge Constitution Bench of the court last year.
Justice Sikri held that minimal possible data were obtained from Aadhaar card holders and that there were enough safeguards, including the facility of encryption and not storing the data beyond the period for which they were required. The majority judges uncritically accepted UIDAI chief Ajay Bhushan’s PowerPoint presentation claiming that during the enrolment process, there was minimal collection of biometric data; that the collection was purpose-blind as it did not collect purpose, location or details of the transaction; and that the information collected remained in silos.
Justice Sikri held that Aadhaar was unique and more foolproof than other identification documents such as the Permanent Account Number (PAN) and ration card because Aadhaar could not be duplicated. The majority judges also saw Aadhaar as an empowering tool insofar as it enabled the marginalised and disadvantaged sections of society to access state subsidies and benefits easily.
The majority judges dismissed concerns over Aadhaar’s violation of the right to privacy by following the “just, fair and reasonableness” standard rather than the “strict scrutiny test”. The “just, fair and reasonableness” standard was laid down in the privacy judgment, delivered by the nine-judge Constitution Bench last year, and it stated that a law infringing the right to privacy must meet the tests of legality (which postulates the existence of law), need (defined in terms of a legitimate state aim) and proportionality (which ensures a rational nexus between the objects and the means adopted to achieve them).
The majority judges also dismissed concerns over Aadhaar’s violation of a person’s dignity, emphasising that there was a need for a balance between two conceptions of dignity: one based on the right to personal autonomy and other based on the right to live a dignified life. They concluded that Aadhaar helped disadvantaged sections lead a dignified life by assuring better targeting of subsidies and state benefits and helped in the effective realisation of a range of socio-economic rights.
Justice Bhushan held that the right to privacy could not be given precedence over the Fundamental Right to life under Article 21, as Section 7 of the Aadhaar Act aims to ensure that all citizens had adequate access to food and shelter.
While upholding the Aadhaar Act, Justice Sikri struck/read down some of its provisions. Thus, he struck down Section 2(d) to disallow collection of metadata. He also read down Section 33(1), which prohibited disclosure of Aadhaar information except by order of a court, by clarifying that an individual whose information was sought to be released should be afforded the opportunity of a hearing. He struck down Section 33(2), which allowed disclosure of Aadhaar information in the interest of “national security” with a qualifier that it could be remedied if an officer higher than the rank of a Joint Secretary was given the power and if a Judicial Officer (preferably a sitting High Court judge) was associated with it to avoid any possible misuse of that power. Justice Sikri directed the Centre to take suitable measures to ensure that illegal immigrants were not able to take the benefits of enrolment under Aadhaar.
Justice Sikri partially struck down Section 57, which enabled non-state actors to seek authentication of Aadhaar data. Justice Bhushan too held that Section 57 violated the fundamental right to privacy, as it permitted private companies to request individuals to provide their Aadhaar number. As private contracts were not law, it failed the legality test, he held. Therefore, Justice Bhushan suggested that Parliament pass laws in the future to allow private companies to require Aadhaar.
Justice Bhushan also upheld Section 59, which retrospectively justified all actions taken by the state in pursuit of Aadhaar prior to the passage of the Aadhaar Act in 2016.
Justice Sikri also partially struck down Section 47, which allowed for cognisance of an offence by a court only when the UIDAI or an officer authorised by it lodged a complaint. He recommended an amendment to this provision to enable an individual victim to file a complaint. Justice Bhushan, in his separate concurring opinion, however, upheld Sections 33 and 47 and Rule 9 of the Prevention of Money Laundering Act, as amended last year.
Linking with mobile phone struck down
While the majority judges upheld the requirement for PAN holders to provide Aadhaar number, they struck down a similar requirement in the case of bank account holders and mobile users. Neither of these two had legislative backing, and compulsory linking with the Aadhaar number for these two categories did not meet the proportionality test, they held. The Prevention of Money Laundering (Maintenance of Records) Rules, 2005, as amended last year, mandated the linking of Aadhaar with bank accounts. Under the garb of prevention of money laundering or controlling black money, there cannot be such a sweeping provision that targeted all residents of the country as suspicious persons, they held. Presumption of criminality was treated as disproportionate and arbitrary, they added, and struck down the amendment as unconstitutional.
The majority judges held that parents’ consent was mandatory for enrolling a child under the Aadhaar scheme, and the child, upon coming of age, can exercise the option to exit the project if he or she so desired.
While the majority judges upheld Section 7 of the Act, they did not approve its use for making Aadhaar mandatory for accessing the functions of the Central Board of Secondary Education, the National Eligibility cum Entrance Test and the University Grants Commission, as these were neither services nor benefits of the state. Similarly, they held that Aadhaar could not be made mandatory for children under the Sarva Siksha Scheme as elementary education was not a state benefit but an entitlement. The bench clarified that no child shall be denied the benefit of a scheme if, for any reason, she was not able to produce her Aadhaar number and such benefit shall be given by verifying the identity on the basis of any other document. The bench also made it clear that school admissions were not services or a subsidy of the state, to justify mandatory requirement of an Aadhaar number. As a child had the Fundamental Right to education under Article 21A, school admission could not be treated as a “benefit” as well, it held.
The majority judges found that Parliament was competent to pass the Aadhaar Act as a Money Bill under Article 110 of the Constitution. The main aim of the Act was to deliver state subsidies and benefits, the expenditure of which falls under the Consolidated Fund of India, they reasoned.
The majority judges struck down Regulation 27 of Aadhaar (Authentication) Regulations, 2016, which provided for archiving of data for a period of five years, as they held that retention of data beyond six months was impermissible. They, however, upheld Section 29 of the Act, which imposed a restriction on sharing information, as in their view it protected the interests of Aadhaar number holders. They agreed that if a provision was made in the Aadhaar (Sharing of Information) Regulations, 2016, which impinged upon privacy rights, it can be challenged.
The Aadhaar case was heard by the Constitution Bench over 38 days, considered the longest period devoted so far to a matter for hearing by the Supreme Court after the historic Keshavananda Bharati case in 1973, by a 13-judge bench, which held that there were certain basic features of the Constitution that were beyond the amending powers of Parliament.
Although the lead petitioner in the Aadhaar case was a former judge of the Karnataka High Court, Justice K.S. Puttaswamy, there were a number of other writ petitioners and interveners who were allowed to make submissions against the project’s constitutionality on various grounds.
Among them were Major General S.G. Vombatkere, who had served the Indian Army in various capacities; former defence scientist Col Mathew Thomas; the advocate Raghav Tankha; the feminist researcher Kalyani Menon Sen; the anti-child labour activist Shantha Sinha; a former judge of the Karnataka High Court, Justice Anand Byrareddy; the social activists Aruna Roy and Bezwada Wilson; John Abraham, who had challenged the project on purely religious grounds; and the non-governmental organisations the Beghar Foundation (representing homeless persons), the Nagarik Chetna Manch (a civil society group) and Swatantra (which represents transgenders and sexual minorities).
The petitioners and the interveners were represented by a galaxy of senior advocates who argued pro bono as many of them believed that if they were to lose this case, they stood the risk of losing the Constitution too. The senior advocates who argued pro bono were Shyam Divan, Kapil Sibal, Gopal Subramanium, K.V. Vishwanathan, P. Chidambaram and Arvind Datar. For the interveners, the senior advocates Meenakshi Arora, Sajan Poovayya, P.V. Surendran, C.U. Singh, Sanjay Hegde, Jayna Kothari and P. Sugathan made submissions. The respondents, the Central government and the UIDAI, were represented by Attorney General K.K. Venugopal, Additional Solicitor General Tushar Mehta and the senior advocate Rakesh Dwivedi.
The background
The initiative in spearheading the attack on the Aadhaar structure was taken by the petitioners Justice K.S. Puttaswamy (retd) and Pravesh Khanna when they filed Writ Petition (C) No.494 of 2012. At that time, the Aadhaar scheme was not under the legislative umbrella. In 2016, with the passing of the Aadhaar Act, these petitioners filed another writ petition challenging the vires of the Act.
Initially, both the Centre and the UIDAI took the stand that the right to privacy was not a fundamental right, as it was held by the eight-judge bench judgment in M.P. Sharma and four others vs Satish Chandra, District Magistrate, Delhi in 1954. This was notwithstanding the fact that thereafter in many judgments rendered by this court, the right to privacy was accepted as a facet of Article 21. The respondents contended that those judgments were contrary to the dicta laid down in M.P. Sharma and were, therefore, per incuriam . This aspect was heard by a three-judge bench, and after hearing the parties, the bench deemed it appropriate to make the reference to the Constitution Bench. A five-judge bench was constituted, which, after considering the matter, referred the case to a nine-judge bench to resolve the controversy in an authoritative manner. In 2017, the nine-judge bench gave an unanimous answer with conclusive, unambiguous and emphatic determination that the right to privacy was a part of Fundamental Rights, which can be traced to Articles 14, 19 and 21 of the Constitution.
In various interim orders since September 23, 2013, the Supreme Court has been restraining the Central government not to make Aadhaar enrolment mandatory. But the majority judges, strangely, ignored the series of violations of its interim orders by the Centre and the State governments.
The Aadhaar Bill was introduced in 2016, to make the process of enrolment, authentication, security, confidentiality and the use of Aadhaar-related information statutory. The Bill received the assent of the President on March 25, 2016, and thus became Act 18 of 2016.
Concerns over intrusive nature
The petitioners told the court that Aadhaar was intrusive in nature. “At its core, it alters the relationship between the citizen and the state. It diminishes the status of the citizens. Rights freely exercised, liberties freely enjoyed, entitlements granted by the Constitution and laws are all made conditional, on a compulsory barter. The barter compels the citizens to give up their biometrics voluntarily, allow their biometrics and demographic information to be stored by the state and private operators and then used for a process termed ‘authentication’. By the very scheme of the Act, and the way it operates, it has propensity to cause ‘civil death’ of an individual by simply switching off Aadhaar of that person. Constitution balances rights of individuals against state interest. The Aadhaar completely upsets this balance and skews the relationship between the citizen and the state enabling the state to totally dominate the individual,” they explained.
Even when a person availed himself of a subsidy, benefit or service from the state, mandatory authentication through the Aadhaar platform (without giving a citizen the option to use an alternative mode of identification) violated the right to informational privacy, the court was told.
“Compelling the citizen to part with biometric information violates individual autonomy and dignity. In a digital society an individual has the right to protect himself by controlling the dissemination of personal information. Compelling an individual to establish his identity by planting her biometric [data] at multiple points of service violates privacy involving the person,” they added.
The seeding of Aadhaar in distinct databases enabled the content of information about an individual that was stored in different silos to be aggregated. This enabled the state to build complete profiles of individuals, violating privacy through the convergence of data, they suggested. The Constitution was not about the power of the state but about the limits on the power of the state. Post Aadhaar, the state would completely dominate citizens, altering the relationship between the citizen and the state.
The state could build a profile of the individual on the basis of the trial of authentication from which the nature of a citizen’s activity could be determined, they warned.
By making Aadhaar compulsory for other activities such as air travel, rail travel and directorship in companies, and availing oneself of services and benefits extended by the State governments and municipal corporations, there would be virtually no zone of activity left where the citizen was not under the gaze of the state. This would have a chilling effect on citizens, they alerted the court.
This is an inversion of accountability in the right to information age: instead of the state being transparent to the citizen, it is the citizen who is rendered transparent to the state, they told the court.
The majority judges were aware of these concerns.
Still, they trusted the respondents who clarified that since the project was an ongoing project, there might be some glitches in its working and there was a continuous attempt to make improvements in order to ensure that it became foolproof over a period of time. The petitioners argued that the architecture of Aadhaar, by its very nature, was probabilistic, and therefore, it might result in exclusion in many cases. Therefore, rather than extending subsidies, benefits and services to the section of society for which these were meant, it might have the tendency to exclude them from receiving such subsidies, benefits and services, they contended.
In response, the UIDAI told the court that biometric accuracy was 99.76 per cent, and if the project was shelved on the grounds that it was probabilistic, 99.76 per cent beneficiaries would suffer exclusion. “It will amount to throwing the baby out of hot water along with the water,” it told the court.
The majority judges, therefore, concluded that the remedy to the problem of exclusion was to plug the loopholes rather than axe the project aimed at the welfare of a large section of society. If there were failures of authentication, the remedy was to adopt alternative methods to identify such persons after finding the causes of failure of authentication in their cases, they added. It would be appropriate if a suitable provision was made in the concerned regulations to establish an identity by alternative means in situations where authentication of Aadhaar number failed because of reasons such as fingerprint and iris changes on grounds of physical disabilities and so on, they suggested.
No person rightfully entitled to benefits should be denied the same on such grounds, the bench emphasised. It warned the state not to expand the scope of subsidies, services and benefits unduly, thereby widening the net of Aadhaar to areas where it was not permitted otherwise.
The majority judges have upheld the validity of Aadhaar believing optimistically that the government will comply with its directions and prescriptions. Only time will tell whether the optimism is justified or not.
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