AADHAAR: THE CHOICE THAT ISN’T
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