Aadhaar Judgement - Modi's Wings Have Been Clipped

Raman Swamy

The Supreme Court has laid down important checks and balances to ensure that Aadhaar is used only for the genuine purposes for which it was created - for targeted delivery of financial benefits for the poor and the underprivileged. 

The Modi government was trying to widen the original scope of Aadhaar by making it mandatory in a variety of activities and transactions for which it was never intended.   The apex court has put a stop to such brazen attempts to use it as an instrument in the hands of the Government to gain control over the lives of all citizens.

In a nutshell, this is the substance of the 4-1 majority judgment of the five-judge Constitutional Bench.  

Even though much is being made out of the fact that only one of the judges (Justice D. Y. Chandrachud) has held Aadhaar to be unconstitutional and the other four judges have upheld the validity of the biometric identification scheme, a closer reading of what Justice A K Sikri has written (in concurrence with Chief Justice Dipak Misra and Justice A M Khanwilkar) reveals the focused manner in which sharp red lines have been drawn to curtail the Government’s tendency to adopt a camel-in-the-tent strategy to enlarge its powers to surveillance,  harassment and weaponisation of meta data.  

Also, very explicit in the majority judgment are the strictures against selling the sensitive private information about citizens to third parties as well as against allowing private business houses and service providers to demand compulsory Aadhaar verification.  

In other words, the Court verdict - which is undoubtedly both historic and in the highest traditions of judicial scrutiny - has effectively de-fanged the ferocious tiger that Aadhaar was becoming.  

The clearest proof of this is the prohibition of Aadhaar-linkage being made mandatory for bank accounts, mobile phone connections, appearing in public examinations, etc.   An entire Section of the Aadhaar Act has been struck down by majority judgment.  

In a very real sense this was at the heart of the “resistance movement” against the imposition of Aadhaar in such a draconian way.   Many of the 29 petitions that were filed objected to this one point - why are banks insisting on the Unique Identification Number?  Why are private companies like Airtel and Vodafone bombarding customers with deadlines and threats of disconnection?

Justice Chandrachud has written very strongly and forcefully on this. But since his is a dissenting judgment in a minority of just one, it is more convincing to examine in detail what another judge, Justice Ashok Bhushan has said on the unconstitutionality of Section 57.

His views are summarized as follows.  I) The basic theme of the Aadhaar programme was for purposes of disbursement of subsidies, benefits or services to individuals entitled for the same.  Ii) Through various notifications, the Government has made Aadhaar authentication applicable for a large number of schemes (133 in total).  Iii) The idea behind Section 57 is that the Aadhaar Act does not prohibit the use of Aadhaar for any other purpose.  Section 57 is thus in a way clarificatory in nature, which enable the use of Aadhaar for any other purposes.  Iv) However, the petitioners have two basic objections. Firstly, they submitted that use of word “any purpose” is unguided and uncontrolled and secondly it can be misused by a corporate body or any unauthorized entity. 

Further, it is settled law that any infringement of Privacy right should pass three­fold test - the first test, which needs to be satisfied for non­intrusion in privacy right is that it should be backed by law.

But, Section 57 cannot be treated as a law which permits use of Aadhaar number for any purpose whatsoever.  The law providing for use of Aadhaar for any purpose has to be rational and proportional.  There has to be some objective to be achieved by use of Aadhaar. 

If a State or body corporate are permitted to use Aadhaar it will be wholly uncontrolled, and therefore prone to violation of Right of Privacy.

Significantly, Justice Bhushan says - “A contract entered between two parties, even if one party is a State, cannot be said to be a law”.

He therefore concludes - “We are of the view that Section 57 is clearly unconstitutional and deserves to be struck down.   We hold that Section 57 is unconstitutional and void”.

After the landmark Aadhaar judgment was delivered, there has been a great deal of debate, discussion and dissection.   BJP spokespersons attempted to call it a “victory for the Modi government” but they sounded unconvincing even to themselves.  

Congress president Rahul Gandhi was perhaps closer to the truth when he tweeted: “For Congress, Aadhaar was an instrument of empowerment.  But for the BJP, Aadhaar is a tool of oppression and surveillance. Thank you, Supreme Court, for supporting the Congress vision and protecting India”.

The, two senior Modi Ministers held a press conference.   The media were struck to see a grim-faced Arun Jaitley and a tense Ravi Shankar Prasad.  The body language told its own story about whether the Aadhaar verdict was a “victory” or a severe rap on the knuckles of the government. 

Instead of immediately talking about the Aadhaar judgment (which was indisputably the most important development of the day), the Finance Minister chose to beat around the bush for more than 15 minutes by listing a series of decisions taken by the Union Cabinet on Wednesday morning.     

The Cabinet decisions pertained to an airport in Patna, a rail track in Chhattisgarh, a canal in Rajasthan and other projects, some of which he himself admitted were old or ongoing. 

Puzzled reporters waited patiently for his comments on the momentous Supreme Court judgment.   When he finally broached the subject, he chose to highlight the portion in which the majority verdict had held that treating the Aadhaar Bill as a Money Bill was constitutionally valid.   He was referring to Opposition party criticism that the Government had deviously bypassed the Rajya Sabha by tabling it as a Money Bill which needs to be voted on only by the Lok Sabha. 

Arun Jaitley declined to answer questions on Aadhaar on the ground that he had not yet had time to read the entire text of the judgment which runs into more than 1000 pages and had only been uploaded a few minutes ago.

The takeaway from the press conference was clear - the Modi government is in no mood to celebrate – because they are painfully aware that their wings have been clipped.  

What the learned judges have said in their majority verdict is clear - Aadhaar is valid but cannot be made mandatory except for welfare schemes for the poor.

The apprehensions of those opposing Aadhaar are also valid – excessive intrusion into the privacy of citizens, which could have the tendency to create a totalitarian state, which would impinge upon the democratic and constitutional values.

The bottom line, as the judges have noted, is that the fundamental feature of the Constitution is the sovereignty of the people with limited Government authority. The Constitution limits governmental authority in various ways, amongst them Fundamental Rights, the distribution of powers amongst organs of the State and the ultimate check by way of judicial review.

The expanded Aadhaar project is destructive of the doctrine of limited Government. The Constitution is not about the power of the State, but about the limits on the power of the State.  The State cannot be allowed to completely dominate the citizen and alter the relationship between citizen and the State.

The features of a totalitarian state, as outlined by the petitioners, can be listed as:  (a) A person cannot conduct routine activities such as operating a bank account, holding an investment in mutual funds, receiving government pension, receiving scholarship, receiving food rations, operating a mobile phone without the State knowing about these activities.

(b) The State can build a profile of the individual based on the trial of authentication from which the nature of the citizen’s activity can be determined.

(c) By disabling Aadhaar the State can cause civil death of the person.

(d) By making Aadhaar compulsory for other activities such as air travel, rail travel, directorship in companies, services and benefits extended by the State Governments and Municipal Corporations, etc. there will be virtually no zone of activity left where the citizen is not under the gaze of the State. This will have a chilling effect on the citizen.

(e) In such a society, there is little or no personal autonomy.  The State is pervasive, and dignity of the individual stands extinguished.

(f) This is an inversion of the 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.

A significant portion of the majority judgment reads - 
A citizen or resident in a democratic society has a choice to identify himself through different modes in the course of interactions generally in society as well as his interactions with the State. Mandating identification by only one single highly intrusive mode is excessive, disproportionate and violates Articles 14, 19 and 21.

The circular dated March 23, 2017 mandating linking of mobile number with Aadhaar is held to be illegal and unconstitutional as it is not backed by any law and is hereby quashed.

We hold that the provision in the present form does not meet the test of proportionality and, therefore, violates the right to privacy of a person which extends to banking details.

This linking is made compulsory not only for opening a new bank account but even for existing bank accounts with a stipulation that if the same is not done then the account would be deactivated, with the result that the holder of the account would not be entitled to operate the bank account till the time seeding of the bank account with Aadhaar is done.

This amounts to depriving a person of his property. We find that this move of mandatory linking of Aadhaar with bank account does not satisfy the test of proportionality.

Similarly, bodies such as CBSE, NEET, JEE, UGC etc. cannot make the requirement of Aadhaar mandatory as they are outside the purview of the Act and are not backed by any law.

The entire aim behind launching this programme is the ‘inclusion’ of the deserving persons who need to get welfare benefits. When it is serving much larger purpose by reaching hundreds of millions of deserving persons, it cannot be crucified. 

What we are emphasising is that remedy is to plug the loopholes rather than axe a project, aimed for the welfare of large section of the society. Obviously, in order to address the failures of authentication, the remedy is to adopt alternate methods for identifying such persons, after finding the causes of failure in their cases.

No wonder that the Modi government is not celebrating victory after the landmark Aadhaar judgment.

Sep 27, 2018

Raman Swamy [email protected]

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