Aadhaar: Supreme Court Saves The Baby, Drains The Bath Water
The Aadhaar judgment is a reminder that the individual is the sovereign, the principal; and the government, is but, the agent.
A tie is a unique proposition which allows both sides to declare victory. The discourse on any issue in India is frequently a proxy war of politics and personalities. The preface of my book ‘Aadhaar: A Biometric History of India’s 12 Digit Revolution’ stated: “Dissent is healthy but a distinction must be made between the baby and the bathwater.”
On Wednesday, in the historic verdict on the constitutionality of Aadhaar, the five-judge bench of the Supreme Court saved the baby and ordered the draining of the bath water. The Aadhaar programme is a sine qua non so far as welfare delivery is concerned. Indeed, data with the government shows 22.18 crore persons are receiving LPG subsidies through Aadhaar-enabled direct benefit transfer, 19.25 crore families were receiving subsidised rations and 10.13 crore persons were receiving payments for the Mahatma Gandhi National Rural Employment Guarantee Scheme.
The 4:1 majority judgment authored by Justice AK Sikri states “if the Aadhaar project is shelved, 99.76 percent beneficiaries are going to suffer. Would it not lead to their exclusion? It will amount to throwing the baby out of hot water along with the water”.
The 1,448-page judgment restored the sanctity of the original concept of Aadhaar as an instrument of authenticating identity to ensure delivery of goods, subsidies, and services to the entitled beneficiary. Along the way, it raised pertinent issues, censured overreach and righted many wrongs that had crept in.
Defining Public Purpose
The preamble to the Aadhaar Act 2016 was crafted to prevent an ambush of the bill in the Rajya Sabha and to keep the doors of expansion open. It is described as “An act to provide for, as a good governance, efficient, transparent, and targeted delivery of subsidies, benefits and services, the expenditure for which is incurred from the Consolidated Fund of India, to individuals residing in India through assigning of unique identity numbers to such individuals and for matters connected therewith or incidental thereto.”
This is backed by Section 4(3) which states “An Aadhaar number, in a physical or electronic form subject to authentication and other conditions, as may be specified by regulations, may be accepted as proof of identity of the Aadhaar number holder for any purpose.” And the open-ended “any purpose” phraseology is followed by Section 7 which explicitly states central and state governments could use this mandate and the possible expansion.
Arguably, any activity of the government paid for from the Consolidated Fund—right down to use of roads or civic amenities and even tax rebates—could trigger linkage to Aadhaar.
More to the point, Section 57 allowed the use of the Aadhaar platform by private enterprises to authenticate the identity of those subscribing to services or those operating accounts in banks and insurance companies. The provision in Section 57—“It can be used for establishing the identity of an individual for any purpose”—was judged to be susceptible to misuse. The bench “read down this provision to mean that such a purpose has to be backed by law.” The court cautioned that any such ‘law’ legislated in the future would be subject to judicial scrutiny.
The court clarified that Aadhaar cannot be used even if there is a contract between the business and the individual. This, the court said, is impermissible, not backed by law, and fails the test of proportionality.
In the book, I argue that “The road ahead requires governments to understand that Aadhaar cannot be a cure-all potion for all the ills that afflict governance.”
What Do You Need Aadhaar For Now?
The Individual And The State
Activists and petitioners had pointed out the many flaws in the Act and gaping inconsistencies in the regulations. The judgment presents what is virtually a forensic analysis of the many provisions in the Act striking them, stripping them or reading them down. Section 47 states “‘No court shall take cognisance of any offence punishable under this Act, save on a complaint made by the Authority or any officer or person authorised by it.” In the book’s epilogue, I had asked: “Does this mean the individual has no power even to initiate proceedings and has to depend on the Authority to initiate criminal proceedings?” The judgment has righted this glaring defect.
The court has ruled that Section 47 “needs a suitable amendment to include the provision for filing of such a complaint by an individual/victim as well whose right is violated.”
The judgment has also read down Section 33(1) and ensured the right of the individual to be heard and challenge disclosure of authentication records to a court. Significantly, the court struck down Section 33(2) which allowed disclosure of records in the national interest. Clearly, the imperative of national interest cannot be flung around as currency to legitimise poorly thought-out provisions. The bench stated that the State is at liberty to legislate a new provision and suggested that. To avoid possible misuse, the disclosure process should be routed through a judicial officer, preferably a sitting High Court judge.
The judgment articulated the Renouvierian principle that a Republic is a State which best ‘reconciles the interests and the dignity of each individual with the interests and dignity of everyone.’ The bench examined and cited several judgments and drew upon the judgment on privacy to elucidate the need for balance between individual and public interests. The judgment is an eloquent expression of the primacy, the status of the individual vis-a-vis the state.
The Money Bill Route
The opposition, the activists and the petitioners have questioned the legitimacy of the Aadhaar Act by challenging its definition as a money bill.
Clearly, the NDA had learned from the mistakes of the UPA, knew its numerical challenge in Rajya Sabha and crafted a way.
The strategy in the phrasing of the preamble, ‘expenditure for which is incurred from the Consolidated Fund of India’ was two-pronged.
It enabled the government to expand the use of Aadhaar in virtually every government programme and project. It also, critically, gave the government the language to introduce it as a Money Bill.
The majority judgment examined the issue from multiple angles including cases, debates of the Constituent Assembly, the origin of the bicameral system and upheld the constitutionality of the money bill route and the passage of Aadhaar Act. The validating factors were the language of the preamble and the fact that Section 7 of the Aadhaar Act, which was the core, had the elements of a ‘Money Bill’. The judgment found the qualification of the bill in order both in terms of the definition in Article 110 (1) and the stipulation in Article 110 (3) of the Indian Constitution which states in any dispute “the decision of the Speaker of the House of the People thereon shall be final.”
The dissenting judgment of Justice Chandrachud, raises fundamental issues ranging from “over-breadth” of clauses to the “defiance of judicial orders” by the state. Above all, Justice Chandrachud states that the contention Speaker’s decision “shall be final” does not “exclude judicial review of the Speaker’s decision.”
Stepping away from the particular, the Aadhaar case, the issue of judicial review of a Speaker’s decisions does merit attention and a reasoned debate.
In an economy and a democracy which values institutions and its democracy, where the centre and the states will cumulatively spend over Rs 60 lakh crore this year, should the burden of a decision on whether a bill is a money bill or not rest on an individual?
It begs a discussion for a better mechanism – say a house vote?
A larger concern that follows is the issue of scrutiny of legislation. The majority and as well as dissent judgments, find the 2016 Act riddled with inadequacies and inconsistencies. The point to ponder is the process of law making – the tendency of governments to bypass the committee system; the passage of bills allocating thousands of crores of rupees in minutes.
The Big Brother
The Aadhaar project has, over the past eight years, become the focal point of public angst on a variety of issues of governance. The big fear though was about the ‘Big Brother’.
The petitioners had argued that the Aadhaar architecture is an instrument to create a cradle-to-grave surveillance state, that this was antithetical to the idea and principles of democracy, that profiling enables the state to quell dissent, influence decision making and rob the person of privacy and autonomy.
The question uppermost in the minds of people is ‘have the fears of mass surveillance now been addressed?’
The majority judgment states “it is difficult to agree with the sweeping proposition advanced by the petitioners that the Aadhaar project is destructive of limited government and constitutional trust.” To assure the people, the judgment explains “Some provisions which we found offending are struck down, some others have been read down and some are tweaked with” including the tenure of data storage. In elaboration, the judges aver, “we are of the view that it is very difficult to create profile of a person simply on the basis of biometric and demographic information stored in CIDR.” The database is not connected to the internet and has been found to be secure.
The judgment states “During the enrolment process, minimal biometric data in the form of iris and fingerprints is collected. The Authority does not collect purpose, location or details of transaction. Thus, it is purpose blind. The information collected, as aforesaid, remains in silos. Merging of silos is prohibited.” The judgment also emphasises the need for a data protection and privacy law based on the draft presented by the Justice Srikrishna Committee.
The answer to ‘will the government legislate to allow the merger of silos to draw profiles?’ depends on ‘can the government legislate?’ Theoretically, a government can enact a law. The essential caveat to remember is that there is no metric to predict political behaviour.
Eternal vigilance is the price of liberty and democracy.
Shankkar Aiyar is the author of ‘Aadhaar: A Biometric History of India’s 12-Digit Revolution’; and ‘Accidental India’. He is a political-economy analyst and Visiting Fellow at IDFC Institute.
The views expressed here are those of the author’s and do not necessarily represent the views of BloombergQuint or its editorial team.