Here's why Justice Chandrachud believes Aadhaar is unconstitutional

In writing a dissenting opinion that differs greatly on the validity of Aadhaar as a money bill, the constitutionality of Section 7 of the Aadhaar Act and on whether the unique identification programme lays the ground for a surveillance state, Justice D.Y. Chandrachud has laid the ground for future political and judicial debate.

The Wire brings you a selected curation of what the judge feels on different aspects of the Aadhaar project and its enabling legislation.

On Aadhaar as the new oil

While data is the new oil, it still eludes the life of the average citizen. If access to welfare entitlements is tagged to unique data sets, skewed access to informational resources should not lead to perpetuating the pre-existing inequalities of access to public resources.

An identification project that involves the collection of the biometric and demographic information of 1.3 billion people, creating the largest biometric identity project in the world, must be scrutinised carefully to assess its compliance with human rights.

Why Aadhaar as a money bill is a fraud on the constitution

Introducing the Aadhaar Act as a money bill deprived the Rajya Sabha of its power to reject or amend the Bill. Since the Aadhaar Act in its current form was introduced as a Money Bill in the Lok Sabha, the Rajya Sabha had no option other than of making recommendations to the Bill.

The recommendations made by the Rajya Sabha (which also included the deletion of Section 57) were rejected by the Lok Sabha.

The legislative history is a clear pointer to the fact that the subsequent passage of the Bill as a Money Bill by-passed the constitutional authority of the Rajya Sabha. The Rajya Sabha was deprived of its legitimate constitutional role by the passage of the Bill as a Money Bill in the Lok Sabha.

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. Passing of a Bill as a Money Bill, when it does not qualify for it, damages the delicate balance of bicameralism which is a part of the basic structure of the Constitution.

The ruling party in power may not command a majority in the Rajya Sabha. But the legislative role of that legislative body cannot be obviated by legislating a Bill which is not a Money Bill as a Money Bill. That would constitute a subterfuge, something which a constitutional court cannot countenance. Differences in a democratic polity have to be resolved by dialogue and accommodation. Differences with another constitutional institution cannot be resolved by the simple expedient of ignoring it. It may be politically expedient to do so. But it is constitutionally impermissible. This debasement of a democratic institution cannot be allowed to pass. Institutions are crucial to democracy. Debasing them can only cause a peril to democratic structures.

The Act thus fails to qualify as a Money Bill under Article 110 of the Constitution. Since the Act was passed as a Money Bill, even though it does not qualify to be so, the passage of the Act is an illegality. The Aadhaar Act is in violation of Article 110 and therefore is liable to be declared unconstitutional.

On UIDAI’s Responsibility or Lack of It

Under the Aadhaar architecture, UIDAI is the only authority which carries out all the functions, be it administrative, adjudicatory, investigative, or monitoring of the project. While the Act confers such major functions on UIDAI, it does not place any institutional accountability upon UIDAI to protect the database of citizens’ personal information.

The Act is silent on the liability of UIDAI and its personnel in case of non-compliance of the provisions of the Act or the regulations made under it. Under Section 23(2)(s) of the Act, UIDAI is required to establish a grievance redressal mechanism. Making the authority administering a project, also responsible for providing for the framework to address grievances arising from the project, severely compromises the independence of the grievance redressal body.

Section 47 of the Act violates the right to seek remedy. Under Section 47(1), a court can take cognizance of an offence punishable under the Act only on a complaint made by UIDAI or any officer or person authorised by it. There is no grievance redressal mechanism if any breach or offence is committed by UIDAI itself. The law must specify who is to be held accountable. The Act lacks a mechanism through which any individual can seek speedy redressal for his/her data leakage and identity theft. Compensation must be provided for any loss of data of an individual.

A stringent and independent redressal mechanism and options for compensation must be incorporated in the law. Section 47 is arbitrary as it fails to provide a mechanism to individuals to seek efficacious remedies for violation of their right to privacy. Whether it is against UIDAI or a private entity, it is critical that the individual retains the right to seek compensation and justice. This would require a carefully designed structure.

Why Section 7 of Aadhaar Act is troubling

The state as a part of its welfare obligations provides numerous benefits to school going children, including mid-day meals or scholarships, to children belonging to the marginalised segments of the society. Should the disbursal of these benefits be made to depend upon a young child obtaining an Aadhaar number or undergoing the process of authentication? The object of the state is to ensure that the benefits which it offers are being availed of by genuine students who are entitled to them.

This legitimate aim can be fulfilled by adopting less intrusive measures as opposed to the mandatory enforcement of the Aadhaar scheme as the sole repository of identification. The state has failed to demonstrate that a less intrusive measure other than biometric authentication will not subserve its purposes.

That the state has been able to insist on adherence to the Aadhaar scheme without exception is a result of the overbreadth of Section 7. Consequently, the inclusion of benefits and services in Section 7 suffers from a patent ambiguity, vagueness and overbreadth which renders the inclusion of services and benefits arbitrary and violative of Article 14.
 

The institution of rights places a heavy onus on the State to justify its restrictions. No right can be taken away on the whims and fancies of the State. The State has failed to justify its actions and to demonstrate why facilitating the targeted delivery of subsidies, which promote several rights such as the right to food for citizens, automatically entails a sacrifice of the right to privacy when both these rights are protected by the Constitution. One right cannot be taken away at the behest of the other especially when the State has been unable to satisfy this Court that the two rights are mutually exclusive. The State has been unable to respond to the contention of the petitioners that it has failed to consider that there were much less invasive measures that could have furthered its goals.

The burden of proof on the State was to demonstrate that the right to food and other entitlements provided through the Aadhaar scheme could not have been secured without violating the fundamental rights of privacy and dignity.

Section 7 suffers from overbreadth since the broad definitions of the expressions ‘services and ‘benefits’ enable the government to regulate almost every facet of its engagement with citizens under the Aadhaar platform. If the requirement of Aadhaar is made mandatory for every benefit or service which the government provides, it is impossible to live in contemporary India without Aadhaar. The inclusion of services and benefits in Section 7 is a pre-cursor to the kind of function creep which is inconsistent with the right to informational self-determination. Section 7 is therefore arbitrary and violative of Article 14 in relation to the inclusion of services and benefits as defined.

Why telecom service providers should delete their Aadhaar-linked data

The conflation of biometric information with SIM cards poses grave threats to individual privacy, liberty and autonomy. Having due regard to the test of proportionality which has been propounded in Puttaswamy and as elaborated in this judgment, the decision to link Aadhaar numbers with mobile SIM cards is neither valid nor constitutional.

The mere existence of a legitimate state aim will not justify the disproportionate means which have been adopted in the present case. The biometric information and Aadhaar details collected by Telecom Service Providers shall be deleted forthwith and no use of the said information or details shall be made by TSPs or any agency or person or their behalf.

Why Aadhaar is unconstitutional

Identity is necessarily a plural concept. The Constitution also recognizes a multitude of identities through the plethora of rights that it safeguards

The technology deployed in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number and infringes the right of an individual to identify herself/himself through a chosen means. Aadhaar is about identification and is an instrument which facilitates a proof of identity. It must not be allowed to obliterate constitutional identity

The entire Aadhaar programme, since 2009, suffers from constitutional infirmities and violations of fundamental rights. The enactment of the Aadhaar Act does not save the Aadhaar project. The Aadhaar Act, the Rules and Regulations framed under it, and the framework prior to the enactment of the Act are unconstitutional.

Why Section 7 can’t be used to justify Aadhaar Act as a money bill

A Bill, to be a Money Bill, must contain only provisions which fall within the ambit of the matters mentioned in Article 110.

Section 7 of the Act allows the Aadhaar number to be made mandatory for availing of services, benefits and subsidies for which expenditure is incurred from the Consolidated Fund of India. Under clause (e) of Article 110(1) the money bill must deal with the declaring of any expenditure to be expenditure charged on the Consolidated Fund of India (or increasing the amount of expenditure).

Significantly, Section 7 does not declare the expenditure incurred on services, benefits or subsidies to be a charge on the Consolidated Fund of India. What Section 7 does is to enact a provision allowing for Aadhaar to be made mandatory, in the case of services, benefits or subsidies which are charged to the Consolidated Fund. Section 7 does not declare them to be a charge on the Consolidated Fund. It provides that in the case of services, benefits or subsidies which are already charged to the Consolidated Fund, Aadhaar can be made mandatory to avail of them.

Section 7, in other words, is a provision for imposing a requirement of authentication and not declaring any expenditure to be a charge on the Consolidated Fund of India. Hence, even Section 7 is not within the ambit of Article 110(1)(e).

However, even if Section 7 were to be held to be referable to Article 110, that does not apply to the other provisions of the Act. The other provisions of the Act do not, in any event, fall within the ambit of Article 110(1). Introducing one provision – Section 7 – does not render the entirety of the Act a Money Bill where its other provisions travel beyond the parameters set out in Article 110. Published in arrangement with TheWire.in.