There are times when there is more honour and glory in defeat than in victory. And so it is with the Aadhar judgement of the Supreme Court delivered on Wednesday. Justice Chandrachud’s minority judgement may have been overruled by the majority of four judges but he has understood the core issues much better than them, articulated the inherent friction between technology and fundamental rights, and quite rightly pointed the finger at the “surveillance potential” of the Aadhar architecture and the likelihood of its being misused by any government. These are all issues which have been either totally ignored by the majority, or on which they have chosen to accept the government’s words at face value.
The judgement is an exercise in something the Supreme Court is getting extremely adept at: a “balancing” act. It did so twice previously in the same week: refusing to declare that politicians with criminal records could not contest elections but asking them to make full disclosure of such cases when filing their nominations; and refusing the Centre’s plea to refer the issue of reservations in promotions to a bigger bench, while simultaneously striking down its earlier codicil of “quantifiable data” of backwardness for allowing such promotions. Such balancing may suit a trapeze artist but it is incongruous with the orders of the highest court in the land. It smacks of a certain diffidence when confronted with an aggressive government, an ambivalent approach best described by Dryden: “willing to wound but afraid to strike.”
I am afraid the judgement does no favours to the ordinary citizen of India: in fact, except Justice Chandrachud, the others have simply done what Usha Ramnathan, the eminent legal researcher and activist, describes as a “copy writing” and proof reading job of the Aadhaar Act- a punctuation corrected here, a clause deleted there, a proviso inserted here, a word replaced there. The majority judges have simply picked ( and struck down) the low hanging fruits which just could not have been allowed to hang there any longer: Section 57 which enabled private data to be shared with all and sundry corporates and private entities, Section 33(2) which allowed the government to access this data at will in the interests of “national security”, Section 47 that did not allow a private citizen to lodge a complaint even when his own data had been stolen/breached. These were such brazen assaults on privacy and individual dignity that, after the Privacy judgement, they could not have been allowed to continue. Other than this, there is very little relief provided to the beleaguered citizen.
The core and seminal issues that lie at the heart of the whole Aadhar debate have not been seriously addressed by the majority judges: the probabilistic nature of biometric based technologies, the conflict between algorithms and rights, the potential for state surveillance embedded in the imperfect Aadhar architecture, the absence of strong data protection laws, the exclusion of millions from their entitled benefits, the complete lack of accountability of UIDAI Only Justice Chandrachud has repeatedly flagged these troubling issues while declaring Aadhar as unconstitutional for these very reasons. One of his observations bear reproducing: “Dignity and the rights of individuals cannot be made to depend on algorithms or probabilities. Constitutional guarantees cannot be subject to the vicissitudes of technology.”
On these vital issues the four judges have opted to accept the government’s assurances, a touching demonstration of trust and sheer gullibility given the dubious track record of the present government. They have accepted, for example, that the govt. shall legislate a robust data protection law, even though the latter has not yet even begun the process of consultation with all stakeholders. The issue about abuse of Aadhar data by state agencies has been brushed under the carpet, even though the govt. has been happily going about seeding multiple databases, is creating a national intelligence grid where all this private information can be fed, is proposing a legislation for compulsory DNA profiling of citizens, and has repeatedly defied the SC orders of 2015 to not extend the use of Aadhar to more areas. The Hon’ble judges have also inexplicably kept clear of the controversies surrounding the leakage of data of millions of people, which has been happening with regular frequency, preferring to accept UIDAI’s oft repeated litany that the data is safe behind ten foot walls, when all empirical evidence suggests that it is leaking like my kitchen sink.
The dismissal of the “exclusion” argument by the majority judges is particularly sad and lamentable. They have accepted without question the UIDAI’s contention that the rate of success of biometric authentication is 99.7% even though its Chairman has admitted that in 6% cases the fingerprinting did not work, and in 8-10% cases the iris authentication was faulty. The govt’s own Economic Survey 2016-17 has revealed that the failure rate in Jharkhand was found to be 49%. ( it is no coincidence that of the 24 starvation deaths attributed to Aadhaar most were in Jharkhand). One has to ask, therefore: where did the Court derive the confidence to trust the UIDAI on their claim of 99.7% success rate? And even if we accept this highly suspect figure, it still means that 4 million people have been denied their fundamental entitlements under govt. schemes. Is this so insignificant a figure that we can dismiss it’s implications for the poor and marginalised?
The unkindest cut, however, is the majority ruling that the Aadhar Act was indeed a money bill and did not have to go to the Rajya Sabha. This ” fraud on the Constitution” as Justice Chandrachud correctly termed it, has been legitimised, even though the Act did not meet any one of the four criteria prescribed in Article 110(1) of the Constitution, all of which essentially require that a Money Bill should in some way have a direct bearing on either withdrawal from, or accrual to, the Consolidated Fund of India. The Aadhar Act does not even remotely do so, even though the Court bought into the govt’s argument that since it involves disbursal of benefits/ expenditure under govt. schemes, it meets the requirements of Article 110. Only Justice Chandrachud saw through the chicanery shrouding this reasoning. Extending this devious logic, tomorrow even a bill on reservation or land acquisition or even Triple Talaq can be termed as a money bill because at some point or the other it will involve some expenditure by the govt! The disturbing thing about the Supreme Court’s imprimatur on this “fraud” is that it will embolden this govt. to resort to this deviant practice in the future too, rendering half of Parliament superfluous to the already flawed democratic practices in our country. Oh, yes, as part of the same balancing act, the judges have held that the power of the Speaker to declare a legislation as a money bill is justiciable but that is cold comfort now that this noxious precedent has been set.
The Court’s touching faith in this govt. is totally misplaced. Noises have already been heard from some Ministers and the corporate lobby about bringing in legislation to overrule even the limited relief provided to harried citizens by this judgement. Further, in the absence of clear directions in the judgement, the govt. will exploit every grey area to adopt an ambiguous approach in issuing directions for deleting data already collected by private corporates, allowing alternate IDs where the Aadhar has failed or is not available, extending its compulsory linking to areas not specifically mentioned by the Court in its order, and so on.
This is a judgement that cries out for review. The base for such reconsideration has been laid out by Justice Chandrachud: it is a strong foundation for a new edifice, and we can hope to see it in the future, if the past is any guide. The Court has reviewed its own orders frequently: in 1962 the majority deed not agree with Justice Subha Rao’s ruling that privacy is a fundamental right, but had to backtrack on this just a couple of months ago; in 1985 in case no. AIR 1985 SC 1618 ( Sowmithri Vishnu vs Union of India ) the Court had affirmed that adultery is indeed a criminal offence, whereas just last week it has gone back on this ruling ; again, the SC had quashed a 2013 order of the Delhi High Court which had decriminalised gay sex, but again had to revise its position earlier this year; during the Emergency years it infamously held that right to life and liberty is not a fundamental right, but once again had to review this later. Both jurisprudence and society are continually evolving, and it is only a matter of time before the voice of Justice Chandrachud will be heard, loud and clear.