The Future Of Aadhaar

The initial enthusiasm has settled. Op-eds have been written. The implications of the Supreme Court’s judgment have been analysed. Now onto the principles that the apex court has laid down which will determine the future of Aadhaar, how laws will be tested against the constitutional right to privacy and the government's ability to pass laws as Money Bills.

Aadhaar's Makeover

There’s no escaping Aadhaar- it is now mandatory for filing tax returns and availing government subsidies, Supreme Court senior counsel AS Chandhiok said. ‘Most citizens will need it for at least one of these two purposes; so there’s no change in its reach, he added.

But its function creep has been curtailed by disallowing private entities to use it, Supreme Court advocate Vrinda Bhandari pointed out. She was representing one of the petitioners who challenged Aadhaar in the Supreme Court.

As next steps, the Aadhaar Act and its regulations will need to be amended to account for the apex court's conclusions. But experts point out the following challenges:

Aadhaar's Ground Reality: The Supreme Court has acknowledged that Aadhaar-based authentications may not always go through since fingerprints may undergo a change and iris test may fail. 'We again emphasise that no person rightfully entitled to the benefits shall be denied the same on such grounds,' the court's order has stated.

The government has maintained this stance all along and yet, the on-ground reality is that individuals have been denied benefits, Bhandari said. She pointed out that it's difficult to ascertain whether someone has been denied a benefit because of an authentication failure or, for instance, an identity fraud. The judgment doesn't have answers to these questions and no poor person in a remote village will come to the court and say that her right has been denied. It’s unclear if the government will amend the law to specifically address such situations, she added.

Access To Private Entities: Lawyers are divided on whether the government can bring a specific law to allow private entities to access Aadhaar. The apex court has said that Section 57 - which permits the use of Aadhaar number for establishing identity for any purpose, by the state or any corporate or person, pursuant to any law or contract- is susceptible to misuse because it can be used for establishing the identity of an individual ‘for any purpose’. This purpose, they've said, has to be backed by law which is absent today. And if such a law is made, it would be subject to judicial scrutiny.

Chandhiok said the court cannot take away the parliament's right to bring in a fresh law. 'The fact that they've said that such a law would be open to judicial scrutiny, means that the government can introduce it,' he added. But if and when it is done, the stated objective of it, unlike in the Aadhaar Act which was intended for state benefits, would have to say that the law is to provide access to private entities and these are the safeguards for it, he explained.

But Bhandari argued that since the court has struck down commercial exploitation of Aadhaar by private entities as unconstitutional, a law to that effect cannot be made.

Redressal Right: If an individual's Aadhaar data is leaked or breached, the law, in its current form, doesn't allow her to file a criminal complaint. Only the Aadhaar authority- UIDAI- can do so under section 47.

Now, the apex court has said that 'it would be in the fitness of things if section 47 is amended by allowing individual/victim whose right is violated, to file a complaint and initiate the proceedings’.

Experts are reading it to be a suggestion and not a clear direction by the court. Both Chandhiok and Bhandari agreed that the court suggests a lot of things to the government but unless it’s stated in so many words, the government isn't duty-bound to follow it.

Privacy And Proportionality Test

As laid down by the Supreme Court, any restraint on right to privacy must pass three tests:  existence of a law, a legitimate state aim and proportionality which ensures a rational nexus between the objects and the means adopted to achieve them. The first two conditions are met, the court has concluded, by the existence of the Aadhaar Act and the government's objective of giving state benefits in an efficient, transparent manner. To ascertain proportionality, the court has relied on the tests postulated by South African professor David Bilchitz, which states:

• One, a range of possible alternatives to the measure employed by the government must be identified.
• Two, the effectiveness of these measures must be determined individually.
• Three, the impact of the respective measures on the right at stake must be determined.
• And four, an overall judgment must be made as to whether in light of the findings of the previous steps, there exists an alternative which is preferable

Proportionality is really a cost-benefit analysis i.e. is the intrusion on a citizen's right justifiable or not, senior Supreme Court advocate Sidharth Luthra pointed out. He explained that the court has applied Bilchitz's test with the lens - can Aadhaar be allowed in a reduced, controlled form so that the intrusion on privacy is restricted and yet is purpose is achieved. The court has successfully done so by restricting the use of Aadhaar for only government benefits, he said. But the court has failed to explore if there are any better, viable mechanisms by which the same public benefit objective can be achieved with even lesser intrusion on an individual's privacy.

Overuse Of Money Bill Window?

The Supreme Court has dismissed the petitioners argument that the Aadhaar Act couldn't have been passed as a Money Bill. It has done so on grounds: -

• The purpose of the Act is to give citizens a unique identity to avail government subsidy, benefit or service, the expenditure for which would be from the Consolidated Fund of India, and
• Section 57 has been partly held to be unconstitutional and other provisions of the Act are merely incidental to its purpose.

The court has clearly expanded the scope of laws that can be introduced as Money Bill by selectively looking at the provisions, Luthra opined. But it has also struck a balance by hiving off some provisions of the Aadhaar Act and reading down others, he added.