“The judiciary is like oxygen in the air. It is not enough that they are independent of the Executive. They must be seen to have quality of mind and heart and above all courage,” wrote Fali S. Nariman. The majority view point on the constitutionality of Aadhaar Act and the dissenting view why such legislation does not pass muster, aptly captures this above statement.
The constitutionality of the Aadhaar Act and the circular issued by the Department of Telecommunication have attracted the attention of all Indians regarding the uneasy coexistence between Right to Privacy, considered as Right Life in Puttaswamy Case (2017) and the Right to Unique Identity. The appellants’ main contention before the court was that India is becoming a surveillance state and that Right to Privacy does not sit well with the Aadhaar Act.
The majority of the judges have upheld that the Aadhaar Act as it meets the triple tests of reasonableness viz. a valid statute, legitimate state action to reach out social benefit schemes to the deserving community, and no disproportionate impact on the beneficiaries. The judges believe that it does a fine balance between personal dignity, which is the core of Right to Privacy and achievement of public good by providing social economic rights to the most deprived sections in a targeted manner.
The insistence for an Aadhaar card for receiving rations, scholarship, midday-meal and LPG subsidy constitutes 3% of GDP. By balancing two Fundamental Rights viz Right to Privacy with Right to Food, Shelter and Education, the court was of the view that the Aadhaar card was promoting both. Based on a detailed presentation made by the UIDAI Chief Dr. Ajay Bhushan Pandey, the court was also convinced that the information collected by the UIDAI authority at the time of enrollment is minimal. Further, biometric accuracy is 99.76%. The court observed that it would be imprudent to ‘throw a baby out of bath water, for a potential 0.23% failure’.
The majority judges have struck down Section 57 of the Aadhaar Act, as being clearly arbitrary. It enabled a corporate and an individual to insist upon Aadhaar card for authentication. The court was of the view that a corporate relationship with an individual is through a contract and cannot impinge on Right to Privacy. It also found insistence for Aadhaar card for admission into school as arbitrary, as it is neither a service nor subsidy. It also struck down the circular issued by Department of Telecommunication dated 23.03.2017 for linking of mobile with Aadhaar card as illegal, as it is not backed by any law passed by the Parliament.
The court did not strike down Section 139(AA) of IT Act 1961, which insists upon the Aadhaar number while using the PAN card. The court has reiterated that the menace of multiple PAN card and illegal money laundering and black money generation can be substantially contained by insisting on an Aadhaar card.
Dr. Dhananjaya Y. Chandrachud giving an equally powerful dissenting judgement has found Aadhaar Act lacking legitimacy as it has been passed in the Lok Sabha as a Money Bill, skipping its mandatory discussion in the Rajya Sabha. Dr. Chandrachud has observed that a Money Bill is covered under Article 110(1), Section (a) to (g) of the Indian Constitution. Despite the opposition by the MPs, the Aadhaar bill was passed as a Money Bill by the Speaker. Dr. Chandrachud has clarified that the action of the Speaker can be overruled on the grounds of irregularity in procedure, substantive illegality or constitutional violation. A case cited is Raja Ram Pal vs. The Hon’ble Speaker, Lok Sabha (2007).
The judge observed that the Rajya Sabha is an institution of federal bicameralism and constitutes a basic structure of the Constitution. The debasement of a constitutional institution under the ruse of Money Bill cannot be countenanced by the highest court of law. Dr. Chandrachud has also observed that biometric technology is probabilistic in nature leading to authentication failure and exclusion of eligible beneficiaries.
He also observes that there is a risk of potential surveillance activity as the database is accessible to third party vendor, who is a foreigner. The security code of this vendor is not available to the Aadhaar authorities. Such data can be misused for extraneous considerations and furthering corporate interests.
Dr. Chandrachud has also mentioned the need for introducing strong privacy protection law. This has also been suggested by the majority verdict where they have called upon the state to implement the recommendations of the Srikrishna Committee on data protection law without further loss of time.
An overall reading of the majority and the dissenting view point would clearly reveal that there by the present government has increased the scope of intrusion by expanding the usage of Aadhaar. The dissenting voice of Dr. Chandrachud raises an important point about the legislative mischief under the pretext of the Speaker’s discretion in the matter of categorizing a bill as Money Bill. Prof. Jean Dreze has brought out in “Sense and Solidarity: Jholawala Economics for Everyone” how the Aadhaar Based Biometric Authentication (ABBA), is denying many poor people the benefit of food at very concessional rate under the PDS scheme.
In Rajasthan it has been observed that only 61% allocation was used by the ABBA while 37% was siphoned off by unscrupulous dealers. In Ranchi PDS dealers give poor people much less than what they are entitled to and pocket the rests. A technology which relies on POS machine, biometric, remote server and a functional mobile network is often found to be hopelessly out of sync to provide the poor their legitimate food entitlement in rural India, where 70% of the poorest of Indians live. Dr. Chandrachud’s concern in this regard is thus fully legitimate.
Justice Charles Evans Hughes had observed that “a dissent in a court of last resort is an appeal to the brooding spirit of law and intelligence of the future day”. The present judgement, both by the majority and the dissenter, have brought out the fault lines of excessive intrusion of Aadhaar technology which can intrude into privacy of choice and personal privacy. Aadhaar would hopefully blend individual dignity with societal well-being, with a proper data protection mechanism in place soon.
About the author
The author teaches Constitutional law. [email protected], Ph-91-7381109899
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