Aadhaar: The spirit of the dissent may outlast the verdict of the court

The SC's Aadhaar judgment is reminiscent of the judicial approval for denying fundamental rights during the emergency

Benjamin Franklin who helped father the American Constitution wrote - "Those who would give up essential Liberty, to purchase a little temporary safety, deserve neither liberty nor safety." If the jurisprudence of the Indian Supreme Court is something to go by, this warning has been largely unheeded. 

Over the years, the Court has upheld the law of sedition, holding that it is necessary for the state to “preserve itself.” The preventive detention provisions of the National Security Act, were upheld despite the Court holding that the phrase ‘national security’ was vague. The validity of TADA was upheld despite departures from the procedural safeguards of the CrPC. Over the years, the Court has consistently held that individual rights, must yield to concerns of larger public interest – however vague they may be. 

Implicit in the majority verdict in yesterday’s Judgment on Aadhaar, is the sacrifice of the individual’s fundamental right of privacy, at the altar of the greater common good. The majority opinion holds that the architecture of Aadhaar, as well as the provisions of the Aadhaar Act, do not create a surveillance state. It also holds that “all matters pertaining to an individual do not qualify as being an inherent part of right to privacy. Only those matters over which there would be a reasonable expectation of privacy are protected by Article 21.” Having held so, the majority goes to hold that there is ‘minimal intrusion’ into an individual’s privacy under the Aadhaar scheme. 

The fight for Privacy in India

A small, determined group of Indians, have been raising questions about privacy and surveillance since the beginning of the Aadhar Scheme. The UIDAI was established in January, 2009 by a notification issued by the Planning Commission. Enrolment for the Aadhaar Scheme began in September, 2010. In December 2011, the Parliamentary Standing Committee on Finance, termed theAadhaar project "unethical and violative of Parliament's prerogatives".

However, in November, 2012, Prime Minister Manmohan Singh launched an Aadhaar-linked direct benefit transfer scheme. The first constitutional challenge to the scheme – filed by Justice KS Puttaswamy (a retired judge of the Karnataka High Court) and Parvesh Khanna (a lawyer) soon followed. 

As the scheme expanded, many other Petitions challenging its validity were filed. The challenges were on three prominent grounds – privacy and autonomy, exclusion and denial of benefits, and the enactment of the Aadhaar Act, 2016 as a money bill. The government’s initial stand was simple: there was no fundamental right to privacy under the constitution. This contention was rejected by a bench of 9 judges in August last year.

The Challange to the Aadhar Act

The validity of the Aadhaar Act/scheme itself was argued over many months commencing from January this year.  When the verdict finally came yesterday, the Supreme Court by a majority of 4:1 upheld the constitutional validity of the Aadhar Act. However, certain provisions of the act have been struck down or read down. The majority Judgment has been authored by Justice Sikri, speaking for the Chief Justice and Justice Khanwilkar. Justice Bhushan’s opinion largely agrees with that of Justice Sikri. 

While dealing with the question of exclusion, the majority holds that when the Scheme “is serving much larger purpose by reaching hundreds of millions of deserving persons, it cannot be crucified on the unproven plea of exclusion of some.” The majority thus agrees with the State’s claim – that Aadhaar will save public money, will ensure good governance and effective implementation of welfare schemes. However, none of these claims are subjected to much scrutiny. The Petitioners assertions regarding the falsity of these claims are disregarded. 

The Court notes that the problem of exclusion does exist. It however proceeds to take on record statement of the Attorney General that no deserving person would be denied the benefit of a scheme on the failure of authentication. It goes on to observe that “it would be appropriate if a suitable provision be made in the concerned regulations for establishing an identity by alternate means, in such situations.” The Court also expresses hope that a strong data protection regime would be put in place. 

This is reminiscent of the Courts’ 1976 judgment in ADM Jabalpur. That case dealt with the existence of the fundamental right to life, being suspended  during the emergency. Justice Yeshwant Chandrachud in his opinion had expressed a ‘diamond-bright, diamond-hard’ hope that those detained during the emergency would not be ill-treated. Those hopes remained pious exhortations. An emboldened state simply ignored them in its descent into unbridled dictatorship. There was however Justice H R Khanna’s famous dissent, which even today ensures that his portrait hangs prominently in Courtroom 2 of the Supreme Court, the court over which he last presided. Justice YV Chandrachud, later apologised for his judgment in that case on the side of the majority.

In a historical twist, yesterday’s Aadhar judgment has a great dissent, from Justice Dhananjay Chandrachud, the son of Justice YV Chandrachud. He  had already set aside his father’s opinion in ADM Jabalpur, in August last year. Now, Justice Chandrachud has held that the entire Aadhaar ecosystem is intrusive and overbroad and has the potential for surveillance.  He notes the problems of exclusion and holds that “constitutional guarantees cannot be compromised by vicissitudes of technology.” He also deems the passage of the Aadhar Act as a money bill to be a fraud on the Constitution. 

Though the majority on the whole, upholds the Aadhar scheme, the Court has struck down a number of provisions. Thus provisions of the Act, allowing private parties to insist on biometrics have been struck down. The Court has also struck down provisions which made it mandatory to link one’s Aadhaar with bank accounts, telephones etc. The Court has further held that CBSE, NEET, UGC etc. cannot insist on an Aadhaar. In fact, the majority has held that an Aadhaar can only be made mandatory for such schemes where, the expenditure incurred has to be drawn from the Consolidated Fund of India.

The Road Ahead

An insistence on an Aadhar for some of the most basic necessities is anti-thetical to the free way of life that our Constitution envisages. The Court has held (perhaps, wrongly) that the Aadhaar scheme is beneficial for larger public interest. It however fails to note that the framers of the Constitution placed certain core values above all other objectives. For example, if the Constitution allowed torture or self-incrimination or wanton searches, there would most likely have been a reduction in crime. If it allowed the State to put cameras in private spaces, and tap our phones, corruption would most likely reduce. 

The Constitution however allows none of this. In doing so, it gives a greater chance to the occurrence of crime. However, this is a choice the founding fathers consciously made. Implicit in the Constitution is the fact that certain values are to be put above anything else, even if it means a greater risk to physical safety or other such concerns. The Aadhar impinges on these rights/values.

Chief Justice Charles Evans Hughes of the US Supreme Court famously 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 when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed". For now, the majority of the Court has upheld the Act. That may be the law as of today. However, it is the spirit of Justice Chandrachud’s dissent that will withstand the test of time.

The authors are lawyers who practise in the Supreme Court. They appeared for some of the parties challenging the validity of the Aadhaar Act. 
 

They tweet @sanjayuvacha & @parahoot