Opinion | Time for Aadhaar to get back to basics
The Supreme Court has recognized its benefits, but also pushed back against its mission creep
Retired Justice K.S. Puttaswamy has provided a rich vein of jurisprudence for future courts to mine. His petition in 2012 was the foundation of the Supreme Court’s (SC’s) recognizing a fundamental right to privacy last year and reading down Section 377 of the Indian Penal Code earlier this month. Now, it has led the SC—in what is in many ways is a sequel to the right to privacy judgement—to finally sign off on the Aadhaar programme, albeit a truncated version.
Few issues have generated more heat and light in recent years. Writing the majority opinion, Justice A.K. Sikri has cut through the accusations and counter-accusations pithily: “Howsoever benevolent the scheme may be, it has to pass the muster of constitutionality.” The SC’s answer to this is a strange one in some ways. On the whole, the majority opinion arrives at the correct conclusion. But it makes missteps along the way. On the other hand, Justice D.Y. Chandrachud, writing the lone dissent, makes several telling points that should help guide future debates about Aadhaar’s implementation. This is unsurprising; he has racked up a series of impressive rulings.
Aadhaar infringes the fundamental right to privacy. There can be no reasonable argument against this. Although there are several other aspects of Aadhaar that the judgement has examined, the core issue is thus one of proportionality: Is the extent of the infringement proportionate with the goal of the Aadhaar legislation?
Among the different flavours of judicial review, the ‘strict scrutiny’ standard, originating in US courts, is the sternest. It is generally reserved for assessing legislation that is discriminatory—reservation laws, for instance. But it can also be used to assess other infringements of fundamental rights. Its recent high points notwithstanding, the SC has a patchy record when it comes to protecting these rights. Employing the strict scrutiny standard, which demands that compelling governmental interest be proved, would have established a healthy precedent. Instead, Sikri has gone with the most lenient standard, “just, fair and reasonable”. This is not surprising; the same standard was used in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors last year when reading the fundamental right to privacy into the Constitution. It is, however, disappointing.
The ruling finds that Aadhaar passes the proportionality check—but only by lopping off chunks of it as it exists today and tightening its provisions to prevent misuse or unnecessary use of citizen data. This is to the good. This newspaper has supported Aadhaar but cautioned against its mission creep. Using it to deliver essential subsidies and benefits that draw upon the Consolidated Fund of India is one thing. Tying it to everything from mobile phone connections to bank accounts is another. Aadhaar was not conceived of as a means for making it easier for the government to track financial activity or kickstart a fintech boom. It has been disheartening to see it metamorphize into exactly that.
This retrofitting has allowed the majority opinion to justify the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016 being passed as a money bill. If this bit of chicanery hadn’t taken place, the mission creep may not have happened to the extent it did. Chandrachud’s calling out the government for this in his dissent is not unreasonable. Likewise, his criticism of the government’s pushing ahead with Aadhaar in ways that ran counter to the Supreme Court’s interim orders while the matter was sub judice. As he puts it, “If governments or citizens were allowed to ignore judicially enforceable directions, that would negate the basis of the rule of law.”
He is too harsh, however, in finding that Aadhaar doesn’t pass the test of proportionality because “The state has failed to demonstrate that a less intrusive measure other than biometric authentication will not subserve its purposes.” Such a counterfactual is difficult to prove one way or the other. At any rate, the long and well-documented history of leakages and corruption in the country’s subsidies and benefits regime shows that the less intrusive measures that have been tried so far have had glaring gaps.
The Aadhaar initiative has been viewed through the lens of political partisanship almost since inception. This has led to an arrogance in its implementation as a pushback against the attacks on it. The rulings—both majority and dissent—show that such heedlessness is dangerous. Plenty of questions remain, from data security to the issue of marginalized individuals being excluded and suffering for it. As Chandrachud has put it, “Constitutional guarantees cannot be subject to the vicissitudes of technology.” Safeguards, not bluster, are needed. And what of the Aadhaar data already with banks, telecom companies and others who are no longer authorized to use it?
Aadhaar has won the Supreme Court battle. Now it must get back to basics.
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