Justice AP Shah: Why the Supreme Court’s judgement on Aadhaar is flawed

Over the past decade or so, the complex issue of digital identity, commonly referred to as Aadhaar, has invited considerable debate from all corners of society in India. On the one hand, we have seen a blitzkrieg of sorts from the government, with ample support from the media, favouring the unique identity project, and arguing that it can help in many ways, for example, by bringing millions out of poverty. On the other hand, vociferous naysayers have tried to prove that Aadhaar is nothing short of a tool of exclusion, pushed down the throats of a powerless electorate. They are concerned that the collection of sensitive biometric and demographic data would lead to unnecessary profiling and the creation of a surveillance state, which would, in turn, violate the fundamental right to privacy.

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While I am no expert on the technology around Aadhaar, I have been following the legal developments over the past few years closely, the constitutional aspects of the right to privacy and related issues being of particular interest to me. It started as an unlegislated and unregulated policy where sensitive identity-related – demographic and biometric – information was obtained from citizens. It was then retroactively legislated through a controversial money bill (on grounds that the law pertained to government spending and appropriation, and which, consequently, did not require approval from the Rajya Sabha – or upper house – in order to be legislated). The law did not go unchallenged; first, a nine-judge constitutional bench of the Supreme Court of India was entrusted with adjudicating upon, primarily, whether the right to privacy was a fundamental right, and later, a five-judge constitutional bench on whether Aadhaar had come about through lawful means, and whether it was being used for legal purposes.

The Aadhaar case – as it has come to be colloquially referred – saw one of the longest hearings ever in the history of the Supreme Court, spanning several days, weeks and months, with lengthy submissions made by lawyers, bureaucrats, technologists and academics, among others.

Every day of the hearing in the Court was followed with bated breath, with the public anxious to know which way the Court would eventually swing.

The decision of the constitutional bench finally came in September 2018 – (Justice (Retd) KS Puttaswamy & Ors v. Union of India, WP (C) 494/2012, judgment dated September 26, 2018, Supreme Court of India) – and the outcome was a majority verdict, albeit with some riders, in favour of Aadhaar as a form of digital identity, and the law creating Aadhaar and regulating its use. The majority bench granted some relief in favour of the citizens. For example, the Court observed that children’s Aadhaar, or UID numbers, could be used only with parental consent and not be demanded of them (although, it ignored the question of “coercion as consent”). On the issue of exiting Aadhaar, the Court said that a person could exit the Aadhaar system upon reaching majority. Alternately, since enrolment in the system was voluntary, those who specifically refused to give consent for enrolment could exit from the Aadhaar scheme. Similarly, the majority agreed that making Aadhaar mandatory “in the name of checking money laundering or black money is grossly disproportionate”. On the issue of surveillance, the majority judgment, while ignoring the potential of surveillance, directed that metadata be deleted after six months. Through all this, though, even if one acknowledges that there were some concessions made to the people (over the state), the majority judgment still falls short, for dealing inadequately, or not at all, with fundamental issues that were at the heart of the case, such as identity and dignity.

For that, instead, we have to turn to the solitary dissent that emerged from one corner of the Court.

Justice DY Chandrachud chose to disagree with the rest of his brethren on the bench, and struck down the entire idea of Aadhaar and the legislation as unconstitutional. His opinion, besides being a landmark contribution to our jurisprudence, discussed issues of vital importance, such as dignity, autonomy and self-determination.

It is unfortunate that his bold dissent did not, in any measure, prevent the legislation from going through. But as Chief Justice Charles Evan Hughes (1862-1948) of the United States Supreme Court once wrote, “[A] dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day...”

In contrast, the majority judgment did not offer a sufficiently nuanced discussion on the interface between identity and dignity so as to convince its audience of the necessity of Aadhaar. The underlying justification offered by the majority for having a biometric identification was the need to grant an identity. Justice AK Sikri, for example, wrote, “Aadhaar gives identity to those persons who otherwise may not have such identity. In that sense, it recognises them as residents of this nation and in that form gives them their dignity.” But I remain concerned that the Court failed to satisfactorily consider the challenges of granting such identity to the most deserving, either on account of technological limitations, or the quality of governance, or even simpler social concerns of accessibility (for example, how can a nonagerian who cannot walk, and who does not have the strength to submit a fingerprint for documentation, stake their legitimate claim to the old-age pension granted by the state?). For all the talk around the “benefits” of Aadhaar, there remains a real concern that a large-scale use of Aadhaar for the purposes of authentication is likely to lead to large populations of society remaining excluded from social sector benefits, particularly manual labour and senior citizens.

With this judgment, the Court has effectively made a distinction between the haves and the have-nots; those who are privileged, as against those who are in need of state assistance.

My own reservations with Aadhaar and the judgment have been echoed by many others, and can be found in quality opinions in this collection as well. In my view, Aadhaar was falsely marketed as a panacea for the poor and impoverished. Over the years, as the project was operationalised and scaled throughout the country, many case studies increasingly pointed to facts that suggested that the poor were not beneficiaries, as originally intended, but rather, the victims of the Aadhaar project. Instead of serving as an inclusive tool, and being used to increase access to social, political and civil rights, Aadhaar had become an instrument of exclusion. Stories abound as to how the state proactively used the lack of a digital identity to deny basic services to its citizens, and thus deprived millions of their rightful benefits – benefits which had been designed precisely for such populations.

As the net of Aadhaar widened, the state made Aadhaar a necessary prerequisite for seeking any kind of benefit, whether it was scholarships for economically weaker sections of society, or compensation for victims of natural disasters, reimbursement of health expenses for persons with debilitating diseases, and so on. A slew of official notifications were issued, over 130 of them. The notifications were issued under Section 7 of the Aadhaar Act, 2016, which mandates that individuals should produce their Aadhaar (or the Aadhaar number) to access social services, subsidy, and benefits, wherever funds are drawn from the Consolidated Fund of India.

The Supreme Court, in its majority judgment, chose to keep this problematic Section 7 of the law untouched. This decision has created a gaping chasm between different sections of our society. This judgment has made it clear that those who are receiving, or who wish to receive benefits from the state (in any form, be it cash or kind), can continue to do so only if they sign up to the Aadhaar scheme. They do not have the luxury of refusing to be a party to the identity project, for the risk is that by refusing to consent to signing up for Aadhaar, they will be deprived of basic socio-economic rights. Aadhaar is now, by law, a necessary prerequisite for anyone who seeks to receive any entitlements from the state. By corollary, assuming that such state entitlements are essential for the survival and sustenance of such persons, the question of them “consenting” to Aadhaar no longer exists.

As a result, everyone who lives below the poverty line, for example, and who relies on state benefits for say, pensions, subsidies or scholarships, no longer has any choice. The right to privacy remains elusive and unaffordable for this stratum of society.

From now on, only those who are privileged can continue to enjoy the privilege of privacy, for they are not expected to solicit the state for its largesse. Those who are not so fortunate must forego any fundamental right to privacy they might have imagined they possess. The protections that the state grants them thereafter are, unfortunately, undefined and clouded, leaving a prospective beneficiary at the mercy of the state from now on.

While this split between the privileged and the rest is the central concern, the judgment does not tackle many peripheral (but important) questions with satisfaction either. Take, for example, the arguments raised around Aadhaar allowing the creation of a surveillance state. The majority judgment’s opinion can be captured in the following observation made, based on statements made by the Attorney General and the UIDAI’s representative, that:

[N]o State would be interested in any mass surveillance of 1.2 billion people of the country or even the overwhelming majority of officers and employees or professionals. The very idea of mass surveillance by state, which pursues what an ANH [Aadhaar number holder] does all the time and based on Aadhaar, is an absurdity and an impossibility.

In observing thus, the Court, unfortunately, brushed aside the consequences of the seeding of Aadhaar in various databases, which allows information about an individual (that was otherwise stored in different silos) to be combined to create complete profiles of persons. The question of whether this act of creating a profile through converged data would lead to the violation of the right to privacy remained largely unanswered.

The other major concern with the majority judgment is its treatment of the Aadhaar Act as a Money Bill. While extensive arguments during the course of the hearing were made against permitting the Aadhaar Act to be considered as a Money Bill, the majority judgment decided otherwise. Arguably, the Aadhaar Act is a law that defines a digital identity and creates the architecture to deal with the data that comes along with such identity. The law does not solely deal with the allocation of resources for Aadhaar, or indeed, otherwise relate to the financial disbursements, receipts and obligations, as envisioned by Article 110 of the Constitution of India. Had its status as a Money Bill been reversed by the Supreme Court, the trajectory of the law would have been very different. The law would effectively have had to have been struck down completely, and been sent back to Parliament, and specifically to the Rajya Sabha, which would have played its legislative role in assessing the concerns with the law.

Instead, the law continues to stand today, with the amendments proposed by the upper house ignored entirely.

In concluding that the Aadhaar Act was constitutionally valid, the Court relied on the doctrine of “pith of substance” – its view was that the heart of the law lay in the delivery of benefits, services and subsidies from the Consolidated Fund of India, which made it, in pith and substance, a Money Bill. On the other hand, in his opinion, Justice Chandrachud concluded that declaring the Aadhaar Act to be a Money Bill was illegal and unconstitutional, noting:

The Rajya Sabha has an important role in the making of laws. Superseding the authority of the Rajya Sabha is in conflict with the constitutional scheme and the legitimacy of democratic institutions. It constitutes a fraud on the Constitution...That would constitute a subterfuge, something which a constitutional court cannot countenance.

Excerpted with permission from the Foreword to Dissent on Aadhaar: Big Data Meets Big Brother, edited by Reetika Khera, Orient BlackSwan.