As Aadhaar Hearings Approach Climax, Much Depends on Final Verdict

Raman Swamy

It is coming to crunch time in the Aadhaar case.  More than one dozen hearings have taken place already and both sides have almost exhausted their ammunition of learned arguments.  The judges on the Bench have also presumably come very close to making up their minds before delivering the final verdict. 

Either way, it will be historic -- if the petitions challenging mandatory Aadhaar are dismissed, the State’s power over citizens will become absolute; if on the other hand, the petitions are upheld, it will be a victory for individual rights and freedoms.    

Those who have been following the arguments closely are of the opinion that, although there are numerous complex issues and concepts involved, after all is said and done, the crux of the matter has virtually narrowed down to one key question. 

The fate of mandatory Aadhaar, they say, will ultimately hinge on one contentious puzzle - What should be paramount in a country like India, National Security or Privacy? 

It is just six months ago that the Supreme Court itself upheld, in a landmark judgment, the Right to Privacy under the Constitution.   Will the apex court now dilute its own verdict by holding that the Duty of the State to preserve and protect the Republic over-rides all other considerations?

Needless to say, this is an obvious over-simplification of the intricate issues involved but going by the direction in which the court proceedings have tended to veer over 13 marathon hearings, the sum and substance of the ultimate pronouncement appears to have boiled down to just this. 

That the judges on the Bench have been grappling with the conundrum is evident from the pointed manner in which they have sought greater clarity on the gray areas between citizens’ freedoms and the powers of the State. 

The legal luminaries representing the petitioners have been laying great stress on the Puttaswamy judgment dealing with ‘informational privacy’ – namely the paramount importance to protect information about the self from being disseminated and the vital necessity to place a limit on the extent to which the State can access that information.

In his forceful arguments, Gopal Subramaniam minced no words - “The Aadhaar Act is an intrusive and all-pervasive regime of surveillance by the State.  It amounts to dataveillance, including metadata. There is no doubt about it”, he submitted.

At this point, one of the judges asked whether it is not true that the State has a legitimate interest in monitoring the Internet web in order to secure the nation against cyber-attacks and the activities of terrorists.

The judge quoted from an article by former US Justice Richard A Posner which had been referred to in the Supreme Court’s Privacy judgment.  Posner has written that “Privacy is the terrorist’s best friend”.  Further, the same technological developments that have both made data mining feasible have made personal information vulnerable.  The internet, with its anonymity, has become a powerful tool of conspiracy.  Does the government not have a compelling need to use digital tools in defence of national security?

The answer from the petitioner’s counsel was short and sharp - “The State is not justified in surveilling the entire citizenry as if all citizens are terrorists and potential cyber-criminals”. 

This focused detailed examination of Section 59 of the Aadhaar Act of 2016. It provides that the setting up of the UIDAI seven years earlier in 2009, should be treated as taken under the Act of 2016.  This is totally invalid and unconstitutional, Gopal Subramaniam argued - “Fundamental rights can only be curtailed under a law in force; such breaches cannot be validated after seven years, retrospectively”. 

He pressed the point further - “If an action was undertaken without lawful authority, it is void at the time it was taken.  By enacting a law in 2016, you cannot justify the unconstitutional invasion of rights committed in 2009”.

Moreover, the Central government is restrained by Article 73 from encroaching on matters on which the States have powers -- subjects like ‘economic and social planning’, ‘social security and social insurance’ and ‘welfare of labour’ are on the Concurrent List.  The Executive power of the Union government cannot extend to matters in which State legislatures are also empowered to make laws. Hence the Central government is not entitled to execute the Aadhaar scheme in regard to such matters.

Similarly, constitutional provisions regarding Panchayats are very clear –Article 243G specifically lays down that government accountability starts at the grassroots level, the Panchayat level.  The central government cannot usurp that by controlling the Aadhaar schemes, which strike at the very foundation of the Federal structure envisaged by the Constitution.

At this point, one of the judges sought a clarification - “Is is possible that the Aadhaar scheme could perhaps be covered under the Residuary powers of the Central list?”  The judge also wanted to know if the Aadhaar architecture was being used by state governments prior to the coming into force of the 2016 Act.

Gopal Subramanium informed the Bench that MoUs had been executed by several States to set up State Resident Data Hubs.  “The access of a citizen to social security schemes and other essential benefits is solely dependent on successful authentication. The Act only provides for updation of biometric data.  But there are no provisions for relief in the event of failure of authentication. But how is the individual to realise when their biometrics need to be updated? The Act does not provide an answer. It is flawed”.

Meanwhile, the reliance on the opinion of US judge Richard A Posner has aroused consternation in some legal quarters.   Posner’s view that “Privacy is the terrorist’s best friend” has been sharply criticized in his own country.  So have many of his judicial opinions. 

In fact, September last year, Posner suddenly resigned as appeals court circuit judge under controversial circumstances.  The Washington Post carried a stinging article calling him “crazy”.  American media reports said that disputes with his fellow judges on the U.S. Court of Appeals hastened his departure. 

Within weeks of his retirement, Judge Posner released a new, self-published book which again caused controversy.  It had a very long and unusual title: “Reforming the Federal Judiciary: My Former Court Needs to Overhaul Its Staff Attorney Program and Begin Televising Its Oral Arguments.”

According to the Washington Post, “Judge Posner has never been one to worry too much about traditional constraints on judicial behavior. Freed of the federal judicial ethics requirements, he lets loose. In the course of chronicling his disputes with other judges about how to deal with appellants, Posner hits out at many others although sometimes the only target he succeeds in hitting is himself”.

On the other hand, Richard Posner is also regarded as a brilliant legal brain.  Even his critics say he will go down in history as one of the most prolific and influential legal thinkers of his generation. 

But as far as India is concerned, as far as the very critical Aadhaar judgment is concerned, it would be prudent for the apex court judges not to rely unduly on Posner’s views while coming to the final verdict on Aadhaar.

Feb 25, 2018

Raman Swamy

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