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Aadhaar an Acid Test of Judiciary’s Independence

Raman Swamy

The Aadhaar case is increasingly being viewed as the acid test of the Judiciary’s independence.  In normal circumstances, to even suggest that the verdict in a particular case provides the opportunity for the highest court in the land to prove that it is impartial and immune to executive pressures, could be construed as contempt of court.

But these are not normal times.  Rightly or wrongly, disturbing questions have been raised about the Chief Justice himself.  Four of his brother judges have publically challenged his role as master of the roster and his fairness in allocating sensitive cases. 

Moreover, more than 60 members of Parliament from seven different political parties have sought to initiate impeachment proceedings against him and, undeterred by the rejection of their motion, are reportedly exploring other ways to pursue the matter.   

Amidst the upheavals within the apex court itself, and the swirling controversy over the government’s decision to block the elevation of a judge recommended by the Supreme Court collegium, the day of final reckoning is fast approaching in the contentious Aadhaar case. 

The marathon hearings of the case will be entering the decisive final stretch next Wednesday after 35 days of grueling arguments.   The five-judge Bench, headed by the Chief Justice, will soon have to pass judgment on critical issues of far-reaching consequence - most particularly on whether biometric metadata of citizens should be mandatory or optional for services other than welfare schemes and subsidies.

Virtually every aspect of the Aadhaar conundrum has by now been argued threadbare.  Interestingly, even after a galaxy of legal brains have delved deep over the last 35 hearings into each of the pros and cons, the core issues remain exactly the same even after two years.   

It was in February-March 2016 that Jairam Ramesh, at that time a Congress member of the Rajya Sabha, moved and got passed certain amendments to the Aadhaar Bill.  However, since the Modi government – for ulterior motives of its own - was adamant to ram mandatory Aadhaar down the nation’s throat, it used its brute majority in the Lok Sabha to reject all the recommendations made by the Upper House.

Ironically, the very same points have come back to haunt the government in the current ongoing, marathon Supreme Court hearings.  This time the matter will be decided not by a bunch of obedient party MPs mindlessly towing the party line but by five learned judges. 

This is where the acid test comes into play.  Will the five wise men assert their independence and demonstrate their impartiality? Or will they, as their critics fear and allege, succumb to extraneous considerations and pressures?

Even to contemplate such a possibility amounts – or should amount – to sacrilege.  The highest judicial body is the last of the great institutions of the country which still commands respect and enjoys unquestioned credibility.  Whatever the final verdict is in the Aadhaar or any other case, therefore, has to be accepted as the last word and be respected as such.

Unfortunately, in the wake of current developments and certain very recent verdicts too, it is becoming gradually more difficult for all citizens to abide by these noble precepts.  Respect has to be earned; it cannot be demanded or commanded.   

By the same token, justice must not only be delivered but seen to be delivered fairly and impartially, without fear or favour.  The reasoning behind the dismissal of the plea for an investigation into Judge Loya’s death was, to tell the truth, less than convincing. 

It was almost as if the prime concern was to avoid going against the testimony of the high court judges and thereby lowering their stature in the public eye.   In the process, all the tell-tale evidence or discrepancies that might have suggested that the plea for a proper probe was not unjustified, were ignored or brushed aside.   

That is now water down the river.  The focus now is on the impending verdict in the Aadhaar case.  Even if all the petitions are dismissed and the government’s demand for compulsory biometric verification for all citizens is upheld, the country will accept it.  However, the reasoning would have to be spelt out in the text of the judgment in a lucid, logical, comprehensive and convincing manner. 

It would, however, fly in the face of common sense if none of the contentions of the petitioners is entertained and the government is given carte blanche on technical grounds – that, for instance,  since the official claim is that more than 90 percent of the population has already been forced or lured into enrolling for Aadhaar, hence it would serve no purpose to declare it to be voluntary or optional.

The issue before the court is not whether it is a fait accompli or not – far larger constitutional and ethical considerations are involved, including fundamental questions pertaining to the right to privacy, democratic freedoms, human dignity and, at another level, hazards of exploitation by commercial interests and indeed the State itself.     

Even on the face of it, certain provisions of the Aadhaar Act need to be struck down – section 139AA of the Income Tax Act infringes the right to personal liberty of those who did not enroll for Aadhaar but are compelled to do so on account of the stringent provision.  

Moreover, a bare reading of Section 3 of the Aadhaar Act makes it clear that the Aadhaar number is an ‘entitlement’ of every citizen of India, as totally opposed to the idea of an ‘obligation’.  This is justifiably so, as enrolment in Aadhaar mandatorily requires one to part with one’s demographic and biometric information in favour of the UIDAI, and the choice to part with one’s information would fall within the scope of ‘personal liberty’ under Article 21 of the Constitution.

There is also a strong case that Section 139AA ought to be struck down in full as it clearly violates Articles 14 and 21 of the Constitution. 

These are just a few of the many strong arguments that emerged during the marathon hearings.  The Chief Justice and his brother judges have a golden opportunity to enhance their stature by taking cognizance of such seemingly valid points, rather than summarily rejecting the petitions as frivolous.

Apr 30, 2018


Raman Swamy [email protected]

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