Judgment travels far beyond the Aadhaar debate

WHILE IT CAPTURED POPULAR IMAGINATION AS A ‘PRIVACY CASE’, THE CASE RAISED FUNDAMENTAL QUESTIONS ON TWO SPECIFIC ISSUES: FIRST WAS INSTITUTIONAL LEGITIMACY AND SECOND, POWER AND COERCION

There are many ways to describe and analyse the Aadhaar judgment. Stretching close to 1,500 pages, it will take time for lawyers to fully digest and assimilate it. It is not only its sheer physical breadth, but the extent and the seriousness of the issues which were litigated before the Supreme Court. This is a judgment which will require a joint national reading, for even though this judgement is about Aadhaar it travels far beyond it, and also far beyond the immediate consequences of linkages to specific services such as banking, telecom connections and tax filings.

A few notes about the Aadhaar case to understand its expanse. While it captured popular imagination as a “privacy case”, the case raised fundamental questions on two specific issues: the first was institutional legitimacy and the second, power and coercion. We often hear in our fraught times that our institutions are under attack but the Aadhaar project provided a practical, tangible illustration of this challenge. The project, which was set up by an executive notification and operated for years without any legislative backing, first drew concern on the possibility of circumventing legislative checks. This became more apparent when in 2016 the Aadhaar Act was passed as a money bill denuding the right of the Rajya Sabha to vote and make amendments. At the same time, litigations were pending in the Supreme Court in which interim orders had been issued but were repeatedly breached by the Union Executive. In its desire to ensure the success of the Aadhaar project, the government upset the constitutional balance for which both Supreme Court and the Rajya Sabha were created.

On the second issue of power and coercion, it is necessary to analyse how technology changes and reorders relationships between individuals and collective bodies, which may be state or private. While such “disruption” is often viewed positively, a more critical examination will reveal that without proper safeguards, which may be implemented by design ethics, or ultimately legal regulation, technology can be an instrument of oppression. The objections to the Aadhaar project which were made on the touchstones of exclusion from essential entitlements such as rations, the electronic leash of perpetual surveillance as it became linked to more and more daily services and functions, and the concept of mandatoriness, ultimately were a real world deprivation of power of the individual to the government and corporations. Through the application of constitutional doctrines, of a limited republican form of government, and the revitalised doctrine of privacy after nine judges reaffirmed it to be a fundamental right, the petitioners were arguing for the Supreme Court to restore power to the people.

Using this framework, let us quickly look at the broad strokes of the judgment, which was decided by five judges. There are three separate opinions. The majority which forms the operative judgment of the Court is authored by justice Sikri and accepted by the Chief Justice Dipak Misra and Justice AM Khanwilkar. There is a separate judgment by justice Ashok Bhushan, who also concurs with the Sikri opinion. Against the unanimity of four, justice DY Chandrachud strikes a bold, principled dissent, which is reminiscent of justice HR Khanna’s evocative dissent in ADM Jabalpur where he hopes that his reasoning will be more appealing, “to the intelligence of a future day”. But before we contrast the findings of these three opinions, it will be useful to take a step back and focus on their consensus. All three indicate problems with the Aadhaar scheme, its implementation, and the lack of safeguards. While it is true that justice Chandrachud eloquently sets out an objection to the project on principle, even justice Sikri’s opinion recognises deficiencies most clearly on the issues of the use of metadata, privacy of minors, linking with banking and telecom services, and the use of Aadhaar by corporate entities.

Some may say this may not change the practical implementation with Aadhaar still being mandatory for tax filing and essential subsidies, but it still limits the breadth, ambition and power. By doing so, the Supreme Court which only judges constitutional validity, has put a massive question for policy makers on the desirability of this project. Part of these holdings also comes from how Aadhaar became a menace, in which a relentless campaign for enrolment and linking was carried out especially for banking and mobile services. To some lawyers this almost seemed that the government was attempting to make this project too big to fail while the case remained pending in the court. The appearance of such obstinance and blind faith in technology, by itself, is an enemy of reason and sound public policy. It also seems to have backfired to a result when all five judges resisted and pushed back against this growing power creep of Aadhaar. In the coming weeks, many public commentators and those in political office will read and comment on this judgement. Many areas of it will be interpreted, and will help guide us. It is hoped we learn from our mistakes, and rather than merely attempting legislative quick fixes or adversarial stratagems to circumvent a court ruling, we fulfil its promise by drawing on our constitutional values of individual rights to better serve public policy.