Methods of interpretation

Core concerns in the Aadhaar judgement must guide necessary policy and legislative fixes

There are many ways to describe and analyse the Aadhaar judgement. Stretching close to fifteen hundred pages it will take time for lawyers to digest and assimilate it fully. It is not only its sheer physical breadth but the extent and the seriousness of the issues which were litigated before the Supreme Court. In this piece, an attempt is made to approach this task with care and humility. To explain why this judgement matters and should be read closely far beyond the immediate consequences of linkages to specific services such as banking, telecom connections and tax filings. This is a judgement which will require a joint national reading for even though this judgement is about Aadhaar, it travels far beyond it.

Two analytical frameworks to understand the expanse of the case

A few notes about the Aadhaar case to appreciate its expanse. While it captured popular imagination as a “privacy case”, the litigation raised fundamental questions on two specific issues, the first was institutional legitimacy and the second being on power and coercion. We often hear in our tensed times that our institutions are under attack, but the Aadhaar project provided a practical, tangible illustration of this challenge. The project which was set up by an executive notification and operated for years without any legislative backing was an issue which first drew concern over the possibility of circumventing legislative checks. This became more apparent when in 2016 the Aadhaar Act was passed as a money bill denuding the right of the Rajya Sabha to vote and make amendments. At the same time, litigations were pending in the Supreme Court in which interim orders had been issued but were repeatedly breached by the Union Executive. In its desire to ensure the success of the Aadhaar project the Government upset the constitutional balance for which the Supreme Court and Rajya Sabha were created.

On the second issue of power and coercion, it is necessary to analyse how technology changes and reorders relationships between individuals and collective bodies, which may be state or private. While such, “disruption” is often viewed positively, a more critical examination will reveal that without proper safeguards, which may be implemented by design ethics, or ultimately legal regulation, technology can concentrate power and become an instrument of oppression. Coercion is a common thread running through concerns of exclusion from essential entitlements such as rations, the electronic leash of perpetual surveillance and the concept of mandatoriness. Through the application of constitutional doctrines of a limited republican form of government and the revitalised standards of privacy after nine judges reaffirmed it to be a fundamental right, the petitioners were ultimately appealing to the Supreme Court to restore power to the people.

The Aadhaar Judgement in much more than a 4–1

Using this framework, let us quickly look at the broad strokes of the judgement which was decided by five judges. There are three separate opinions. The majority which forms the operative view of the Court is authored by Justice Sikri and signed on by Chief Justice Misra and Justice Khanwilkar. There is a separate judgement by Justice Bhushan who also concurs with the Sikri opinion. Against the unanimity of four, Justice Chandrachud strikes a bold, principled dissent, which is reminiscent of the Justice Khanna’s evocative dissent in ADM Jabalpur where he hopes that his reasoning will be more appealing, “to the intelligence of a future day”. But before we contrast the findings of these three opinions, it will be useful to take a step back focus on their consensus. All three judgements indicate problems with the Aadhaar project, its implementation and the lack of safeguards. While it is true that Justice Chandrachud eloquently sets out an objection to the Aadhaar project on principle, even Justice Sikri’s opinion recognises deficiencies most clearly on the issues of the use of metadata, privacy of minors, linking with banking and telecom services and the use of Aadhaar by corporate entities.

Some may say this may not change the practical implementation with Aadhaar still being mandatory for tax filing and essential subsidies, but this judgement in its unanimity limits the breadth, ambition and power of the project. By doing so, the Supreme Court which only judges constitutional validity prompts a massive question to policymakers and our legislators on the desirability of this project.

Part of these holdings is also a product of how in recent times Aadhaar became a menace. A relentless campaign for enrollment and linking carried out reminiscent of demonetisation, in which the rhetoric of nationalism and patriotism was used to justify its link to every and any conceivable service. From online matrimonial portals, insurance services, provided fund receipts. skating competitions, job applications. This list goes on, but most people will remember the regular reminders of our banks and mobile phone service providers. With a relentless stream of messages, calls, online pop-ups threatening deactivation we were coerced to enrol and link Aadhaar. To some lawyers, this almost seemed that the Government was attempting to make this project too big to fail while the case remained pending in the Court. The appearance of such obstinance and blind faith is technology indicated resistance to reasonableness and reason. Thankfully, this inexorable march of the biometric database seems to have backfired when as a result, all five judges resisted and pushed back against the growing power creep of Aadhaar — removing its linking with mobile, banking services and stopping not only its insistence but even its use by private parties.

Some lessons as we step ahead

In the coming weeks, many public commentators and those in political office will read and comment on this judgement. Many areas of it will be interpreted and will help guide us. It is hoped we learn from our mistakes, and rather than merely attempting legislative quick fixes; engaging in stubborn grandstanding, or devising adversarial stratagems to circumvent a court ruling, we fulfil its promise and answer concerns that remain unaddressed. One way is by examining the desirability and the utility of the Aadhaar project itself. This will require good faith and moral courage and may be implemented by a fair, open public consultation on the future of this project. Readings of the Aadhaar judgement and the history of this litigation should guide us towards democratic values of serving individual liberty as the principal aim of India’s digital policy.

A version of this article has been published by the Hindustan Times on September 28, 2018 and is available here. I assisted senior advocates who appeared for the petitioners in the Aadhaar case.

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