New Delhi: The Supreme Court may have declared Aadhaar constitutionally valid and not violative of privacy, but the sole dissenting voice in the five-judge bench that delivered its ruling on Wednesday seems to have kept the door ajar for others to challenge the law.

That Justice D.Y. Chandrachud differed, and quite strongly, on several key points in the judgement and the opinions expressed by Chief Justice Dipak Misra, and Justices A.K. Sikri, A.M. Khanwilkar and Ashok Bhushan, is not without precedence—other famous cases of dissent have gone on to provide the basis for follow-up path-breaking judgements.

A case in point is the dissent recorded by Justice H.R. Khanna in the A.D.M. Jabalpur vs Shukla case in 1976, in which he said fundamental rights cannot be curtailed during an Emergency. This came after a Constitutional bench declared that under Emergency provisions, an individual could not approach the courts to save their liberty or life. Khanna’s dissenting note later went on to become the law.

On Wednesday, Sanjay Hegde, a Supreme Court lawyer, recalled what Charles Evans Hughes, Chief Justice of the US Supreme Court in the 1930s, had said about dissent—that it should be “an appeal to the brooding spirit of the law, to the intelligence of a future day".

“A dissenting judgement is an invitation to a future larger bench to hold that the majority got it wrong and the minority was correct," said Hegde.

Chandrachud’s dissent note clearly left the door open for challenges. Chandrachud held that the passage of the Aadhaar Bill as a Money Bill was in violation of Article 110 of the Constitution, describing it as “an abuse of the constitutional process."

“It deprived the Rajya Sabha from altering the provisions of the Bill by carrying out amendments," he argued, adding that passing a Bill as a Money Bill, when it does not qualify for it, “damages the delicate balance of bicameralism which is a part of the basic structure of the Constitution".

Chandrachud also held that the decision of the Lok Sabha speaker to certify a Bill as a Money Bill cannot take leave of constitutional morality and is liable to be tested upon the touchstone of its compliance with constitutional principles.

On proportionality, defined as the set of rules determining the necessary and sufficient conditions for limitation of a constitutionally protected right by a law to be constitutionally permissible, Chandrachud said: “While analysing the architecture of Aadhaar, this court has demonstrated how the purported safeguards in the Aadhaar architecture are inadequate to protect the integrity of personal data, the right of informational self-determination and, above all, rights attributable to the privacy-dignity-autonomy trilogy."

“The Aadhaar scheme causes an unwarranted intrusion into fundamental freedoms guaranteed under the Indian Constitution, since the respondents have failed to demonstrate that these measures satisfy the test of necessity and proportionality," Chandrachud said in his dissenting note.

On the collection of biometric data, Chandrachud was of the view that “denial of access to the individual (of his own biometrics) violates a fundamental principle of data protection: ownership of the data must at all times vest with the individual".

“Identity systems," he further noted, “whether in paper or digital, must work for public good and must do no harm. However, identity systems, due to their inherent power, can cause harm when placed into hostile hands and used improperly. There is also the threat of abuse of power by future governments," he warned.

Lastly, while his four colleagues said that Aadhaar does not violate an individual’s privacy, Chandrachud advocated the creation of “strong privacy protection laws and instilling safeguards", which he said “may address or at the very least assuage some of the concerns associated with the Aadhaar scheme, which severely impairs informational self-determination, individual privacy, dignity and autonomy".

elizabeth.r@livemint.com

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