Aadhaar judgement sets a legislative agenda

The government in setting its legislative agenda should not approach the issue of reforms to the Aadhaar project from the narrow lens of a recalcitrant private litigant.

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As we continue to analyse the Aadhaar judgement we are faced with a peculiar situation in which both the civil society petitioners and government respondents are claiming a qualified victory. In the maelstrom of public opinion, they reveal a singular message, this fight is not over yet. There is every reason to anticipate further executive and legislative actions that spill over into court challenges. These will be through changes in the Aadhaar Act and other laws, and second through the introduction of a comprehensive privacy and data protection law.

Is Aadhaar a mandatory-voluntary cat and mouse game?

On both these issues, the judgement of five judges holds important lessons. Most immediately government measures may include breathing life into the mandatory linking of Aadhaar with mobile and bank services as well as permitting its use by private entities which have been struck down by the Supreme Court. While such devices may be achieved by executive action, a firmer foundation in legislation will be necessary as indicated by the judgement. But beyond the absence of a credible underlying law, the reasoning of the majority opinion of Justice Sikri also indicates a heightened judicial exam requiring substantive compliance.

This second stage scrutiny that utilises the constitutional doctrine of proportionality is most clearly reasoned when the court strikes down the mandatory linking of bank accounts with Aadhaar. It states, “making the requirement of Aadhaar compulsory for all such and other persons in the name of checking money laundering or black money is grossly disproportionate”. A similar reasoning extends even to compulsory mobile linking, if and when done by an act of parliament. Even going by the majority judgement in isolation, there is a requirement to tailor the use of Aadhaar, and the pre-judgement position of a universal, mandatory link to every conceivable service has become constitutionally untenable.

Similar requirements will be necessary for any legal authorisation for the use of Aadhaar by corporate bodies. They will need to be on the basis of a law that clearly states its purpose, with specific limitations and safeguards, mere executive notifications for universal linkages or mandatory use will just not do. Even then they will be open to challenge, and the indiscriminate private use of Aadhaar despite attempts to cloak it with legality will remain unconstitutional.

A diamond-bright hope for a strong privacy and data protection law

The other area where a legislative agenda has been set is with regard to a comprehensive privacy law. While the majority judgement does seem to go into the specific issues of the compliance of the Aadhaar project with data protection principles such as data minimisation and purpose limitation they are premised on a powerpoint presentation made by the UIDAI Chief, A.B. Pandey to the Court. These are factual determinations, which required an independent examination by a regulatory body such as a Privacy Commission to assess the veracity claims through a process of evidentiary examination. This is not done by the constitutional court.

Further, the majority also makes a mistake by repeatedly commending the pending processes by the Union Government to enact a data protection law as recommended by a committee headed by Justice Srikrishna. At moments it almost seems, despite the caveats of the judgement, that the Court is agreeing with the formulation of the Draft Bill Data Protection Bill which has come in for intense criticism. To factor in a pending legislative process in a constitutional adjudication defers the application of constitutional principle to a diamond-bright, diamond-hard hope.

A stark warning in the dissent

Even as a matter of propriety, the draft bill was drafted and submitted to the Government much after arguments had been completed and the judgement was reserved — it should not have been a matter of consideration for the court. This becomes important as, if it would have been submitted during arguments it would have furnished opportunity to the Petitioners to challenge the premise of the draft bill and the recommendations of the committee. It is important to note that many claims made by it are fundamentally misaligned with serving individual and public interest. But the demand for a comprehensive and a strong privacy law is only becoming greater with each passing day. Here it may be useful to head the caution of Justice Chandrachud who notes the need for an independent statutory body to ensure the protection of personal data by starkly warning that, “the invisible threads of a society networked on biometric data have grave protends for the future. Unless the law mandates an effective data protection framework, the quest for liberty and dignity would be ephemeral as the wind”.

Will the government heed the lessons from this litigation?

This quote forces us to take a step back and consider that when debating the amendments to the Aadhaar Act, its regulations and other laws, and the introduction of a privacy and data protection law, what is the approach being undertaken? Is it with the desire to restore the mandatoriness and power of the project? Or, to address the concerns which lead to a diverse set of petitioners approaching the Supreme Court. One hopes for good faith guides the government in setting its legislative agenda that it does not approach the issue of reforms to the Aadhaar project from the narrow lens of a recalcitrant private litigant.

An edited version appeared first appeared in the Indian Express on September 28, 2018.

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