Now that activists who had wanted the Aadhaar regime to go lock, stock and barrel, have lost out in their bid in the Supreme Court, they have sought solace in the verdict of one of the five judges on the Bench who agreed with their contention. They have also received some comfort in the restrictions that the court’s order have placed on the use of the biometric system which provides citizens of India with a unique identification. But it’s poor solace because the judgement upholding the constitutional validity of Aadhaar is a majority one; 4:1, and that counts. It being the case, both the Congress and the Bharatiya Janata Party have claimed victory — though let us remember that Congress president Raul Gandhi had called the system under the Modi Government as a “tool of oppression and surveillance” . The first, for having introduced the system during its tenure, and the second for having broadened its scope and given it legislative stature. The validation of Aadhaar is, however, beyond politics.
It is important to call out those who are clinging on to the dissenting judgement of Justice DY Chandrachud on the ground that their apprehension and contentions have been seconded by the learned judge. He held that the Government’s decision to use the ‘money Bill’ route to skirt around the problem of numbers in the Rajya Sabha constituted a “fraud” on the Constitution; that rights and dignity of an individual could not be held hostage to “algorithms or probabilities” that biometric technology envisages; and that privacy provisions for an individual were seriously compromised through the Aadhaar regime. But celebrating activists have to also look at the majority verdict.
Chief Justice Deepak Misra and Justices AK Sikri and AM Khanvilkar have pointed out that the danger of ‘probability’ — which Justice Chandrachud refers to — is 99.76 per cent, as stated by the Unique Identification Authority of India (UIDAI); that the Government’s aim through this system was to ensure the inclusion of deserving millions for various social service benefits; that issues flagged as concerns can be remedied by plugging the “loopholes” , rather than by scrapping the project altogether. On the matter of privacy and accusations that the Centre was seeking to create an Orwellian situation, the three Justices emphatically said that they did not find any material either in the Aadhaar architecture or the relevant Act that would “tend to create a surveillance state”. They went a step further and stated that the “manner in which the Aadhaar project operates”, ruled out the fear of a big brother monitoring individual privacy issues.
Justice Ashok Bhushan, who wrote a separate judgement — Justice Sikri authored the verdict on behalf of the Chief Justice of India and Justice Khanvilkar — also dismissed the alarmist approach of those who opposed Aadhaar on grounds of privacy (which the court has held as a Fundamental Right) being violated. Taking a pragmatic position, he said: “Even if authentication under Aadhaar is probabilistic as on date, we have no doubt steps will be taken to minimise the mismatch and attain more accuracy in the result”. More tellingly, Justice Bhushan held that the requirement to present one’s geographic and biometric data “does not violate the Fundamental Rights of privacy”, because it follows a three-fold test” established in an earlier verdict of the apex court. (It was in a case involving a retired High Court judge, KS Puttaswamy, who had challenged Aadhaar’s validity. He has, incidentally, termed the recent verdict as “fair and “reasonable”.) Justice Bhushan also gave a ringing endorsement to the Aadhaar architecture and the UIDAI Act.
Swept away by Justice Chandrachud’s minority verdict, and quite mindful of the majority opinion, activists and other likeminded people have scrambled to draw parallels with the principled stand that Justice HR Khanna had taken in the infamous ADM Jabalpur case. This is a silly exercise in comparing apples and oranges. By no stretch of imagination have democratic values been undermined or the judiciary has caved in to unconstitutional arm-twisting. Besides, certain issues of concern the dissenting judge has highlighted, have been taken care of in the overall judgement, because the constitutional validity of Aadhaar has come with riders. Mindful of individual data being misused by corporate organisations, the Justices have ruled that Aadhaar will not be mandatory for mobile phone connections; it had previously been mandated through Section 57 of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016. Additionally, Aadhaar will not be needed in school admissions or for examinations such as those conducted by University Grants Commission, and for NEET and CBSE tests. The majority verdict has also ‘read down’ various other provisions of the Act, thus effectively taking cognisance of concerns raised, and addressing them.
The anti-Aadhaar activists are now nursing one last hope: That in time to come — sooner than later— the apex court will re-think, like it did in the Section 37 case, where it overturned one of its earlier orders and decriminalised same-sex relationships. Meanwhile, it’s for the Government, this or any other, to make full use of the court’s validation and demonstrably expand the use of the Aadhaar architecture to benefit the needy through its social service outreach.
Discussion about this post