Op-Ed: The Last Has Not Been Heard on Aadhaar

Strange are the ways of the judiciary. Oblivious of the intricacies of law, ordinary mortals like this author fail to understand how one member of the five-judge constitutional bench, Justice Chandrachud, came to a conclusion that is diametrically opposed to the majority verdict based on the same set of evidence and arguments and counter-arguments that all of them saw and heard.

After reading the highlights of both the majority and minority verdict, it is clear that Justice Chandrachud is on firmer ground than his colleagues in the bench at least on one count. As Justice Chandrachud has pointed out in his dissenting judgment, it is preposterous how parliamentary processes were subverted to pass such an all-pervasive law as a Money Bill bypassing the Rajya Sabha where the ruling combination does not have a majority. The dissenting judge has rightly called it a ‘fraud’ on the Constitution. The arguments put forth by Finance minister Arun Jaitley to justify the passage of the Aadhaar Act as a Money Bill just do not stand scrutiny. Kapil Sibal has said this particular aspect would be challenged in the Supreme Court.

The majority judgment read out by Justice Sikri has done the right thing by striking down the provision allowing sharing of identity and authentication details in ‘national interest’. But it has still failed to put at rest legitimate apprehensions about a possible breach of privacy and the emergence of a ‘Surveillance State’. The checks and balances in the Act referred to in the majority verdict are no guarantee against the invasion of privacy and data theft or misuse. The apex court has done well to direct the government to destroy all authentication data within six months. But what is there to prevent an unscrupulous official to steal or misuse such data before the six-month deadline expires? ‘Checks and balances’ are integral to every sector in India. But have they succeeded in preventing their circumvention? To take just one obvious example, if the ‘checks and balances’ in place have failed to prevent massive frauds in public sector banks by the likes of Vijay Mallya and Nirav Modi working in tandem with unscrupulous bank officials, why should we assume that a similar thing cannot happen in relation to Aadhaar? Data, after all, is the new age currency and private companies would give their right hands to lay their hands on data about citizens. Leakage of data, as several reports have pointed out, is the easiest when they are in possession of the government.

Jaitley has set the cat among pigeons with his take on why the apex court struck down Sec 57 of the Act. He has said the government may consider bringing in a law to enable private entities to use Aadhaar data. The government would assess whether the SC junked Aadhaar-linked authentication by banks and mobile service companies because of the ‘absence of a law’. If the government makes good its ‘threat’, it would be back to square one. Millions of Indians, who have just heaved a sigh of relief at the SC ruling barring private companies and even banks from insisting on Aadhaar cards for myriad transactions, would feel cheated at this brazen attempt to usher in through the back door what the apex court has struck down on legitimate grounds. The Finance minister must explain why it is so important for the government to allow private entities to insist on Aadhaar card? Didn’t banks and private companies do business when there was no Aadhaar?

On one count, however, the Supreme Court verdict is unexceptionable: the ‘exclusion’ question. The apex court has rightly held that nixing the whole system put in place at enormous cost and time just because 0.03% of people do not have an Aadhaar card or face problems during authentication would amount to ‘throwing the baby with the bathwater’. After all, the main objective behind the whole concept of check fraud and pilferage in the distribution of the benefits of welfare schemes of the government. As the court has said, it is certainly possible to put in place an alternative system for authentication of identity to ensure no one loses out on such benefits.

The nuanced SC judgment has brought cheer and disappointment in equal measure for both sides. While the government that has invested so much on Aadhaar must be relieved that the court has upheld its constitutional validity, it would be disappointed that Sec 57 has been struck down. Similarly, the petitioners must be happy with the ruling that private entities and banks, including those belonging to the public sector, cannot make Aadhaar mandatory for a transaction, their concern about breach of privacy remain. Going by the reactions of both sides, the verdict looks certain to be challenged in a larger constitutional bench.

The last has clearly not been heard on Aadhaar.

(DISCLAIMER: This is an opinion piece. The views expressed are author’s own and have nothing to do with OTV’s charter or views. OTV does not assume any responsibility or liability for the same)