Re­ply­ing on July 8 in the Ra­jya Sabha af­ter the de­bate on the Aad­haar and Other Laws (Amend­ment) bill, 2019, Union law min­is­ter Ravi Shankar Prasad ex­pressed his dis­ap­proval of the use of “harsh words” by Supreme Court judges. He was likely re­fer­ring to Jus­tice D.Y. Chan­drachud’s dis­sent­ing opin­ion in Jus­tice

K.S. Put­taswamy (Retd) v. Union of India. While the Supreme Court had given a con­di­tional im­pri­matur to the Aad­haar Act, 2016, Jus­tice Chan­drachud, in his opin­ion, had voted to strike down the law as a whole. In his be­lief, the gov­ern­ment’s in­tro­duc­tion of the Aad­haar

Act as a money bill, and its con­se­quen­tial en­act­ment with­out the Ra­jya Sabha’s ap­proval, was a “fraud on the Con­sti­tu­tion”.

But harsh as the opin­ion might have been, it scarcely de­terred the gov­ern­ment from mak­ing fresh abuses. Through the amend­ment bill, which has now been passed by both houses of Par­lia­ment, the gov­ern­ment has sanc­tioned a new act of sub­terfuge. The bill, now await­ing the Pres­i­dent’s as­sent—which will surely come—is beset with a hat­ful of prob­lems. Chief among them is its si­lence on the is­sue of exclusion from wel­fare due to Aad­haar. By grant­ing the Ex­ec­u­tive the power to frame reg­u­la­tions to pro­vide for alternativ­e means of iden­ti­fi­ca­tion when

Aad­haar fails to en­dorse iden­tity, the bill ends up del­e­gat­ing an es­sen­tial leg­isla­tive function. In do­ing so, it con­tin­ues to treat the Con­sti­tu­tion’s prom­ise of a right to life as fun­gi­ble at best.

The prob­lem is ex­ac­er­bated by the ef­fort to re-val­i­date pri­vate use of Aad­haar. In its orig­i­nal form, the statute, through Sec­tion 57, per­mit­ted state and pri­vate en­ti­ties alike to use the Aad­haar in­fra­struc­ture to es­tab­lish the iden­tity of an in­di­vid­ual. The Supreme Court, in Put­taswamy, was aware of the dan­gers in per­mit­ting such use and unan­i­mously de­clared Sec­tion 57 un­con­sti­tu­tional, even while up­hold­ing sub­stan­tial parts of the Aad­haar Act. “Even if we pre­sume that leg­is­la­ture did not in­tend so, the im­pact of [Sec­tion 57],” wrote Jus­tice A.K. Sikri for the court, “would be to en­able com­mer­cial ex­ploita­tion of an in­di­vid­ual bio­met­ric and de­mo­graphic

in­for­ma­tion by the pri­vate en­ti­ties.” The court felt, in per­mit­ting such use, the law would di­rectly in­fringe the pri­vacy of th­ese in­di­vid­u­als.

The newly pro­posed amend­ment cir­cum­vents this find­ing. It prac­ti­cally im­poses Aad­haar on the cit­i­zenry while pay­ing lib­eral lip service to mak­ing it “vol­un­tary”. The fal­la­cies of the claim be­come ap­par­ent on close ex­am­i­na­tion. Aad­haar, in the new bill soon to be­come law, is os­ten­si­bly ‘vol­un­tary’ be­cause it re­quires pri­vate cor­po­ra­tions to se­cure the con­sumer’s “in­formed con­sent” be­fore us­ing it to ver­ify iden­tity. But in ad­di­tion, the bill also seeks to amend both the Tele­graph Act, which ap­plies to mo­bile phone op­er­a­tors, and the Pre­ven­tion of Money Laun­der­ing Act, which ap­plies to banks, by per­mit­ting the use of Aad­haar as a ‘KYC’ doc­u­ment. The pass­port, which only a mi­nus­cule por­tion of India’s pop­u­la­tion owns, is the only other doc­u­ment that can now be used to es­tab­lish iden­tity—not count­ing other doc­u­ments the gov­ern­ment may no­tify in the fu­ture. Mak­ing Aad­haar prac­ti­cally manda­tory car­ries the enor­mous risk of exposure through data breaches, a risk only am­pli­fied by the lack of in­de­pen­dent reg­u­la­tory con­trol and the fact that there is still no data-protection leg­is­la­tion.

Given that the Supreme Court’s de­ci­sion to up­hold Aad­haar was pred­i­cated on strik­ing down Sec­tion 57, on a prom­ise that the plat­form would not be used to en­able com­mer­cial ex­ploita­tion and on a con­tin­ued pledge that the gov­ern­ment will not make Aad­haar com­pul­sory, the new amend­ment is open to a con­sti­tu­tional challenge. By ef­fec­tively over­rul­ing the Supreme Court’s judg­ment and re-em­body­ing Sec­tion

57 in a new form, the bill strikes a blow at the guar­an­tee of the right to pri­vacy, which has now been held to be a fun­da­men­tal right. This, to­gether with the fail­ure to ad­dress the exclusion due to Aad­haar, makes the prospec­tive law dis­tinctly amenable to the Supreme Court’s writ. ■

Suhrith Parthasara­thy is an ad­vo­cate prac­tis­ing in Madras High Court

The new Aad­haar bill ef­fec­tively over­rules the SC judg­ment and re-em­bod­ies Sec. 57; in reval­i­dat­ing its pri­vate use, it strikes a blow at the fun­da­men­tal right to pri­vacy

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