UID: Death by thousand cuts?

Six years, more than 30 petitions, 26 judges, over a 100 days of proceedings, and 38 days of final hearing, making it longer than any case in Supreme Court history barring the Keshavananda Bharati case of 1973 (that held that the basic structure of the Constitution was inviolable, even by a constitutional amendment). Four judgements, including one by a rare, nine-judge bench. Even before a five-judge constitutional bench of the apex court delivered its 1448-page final verdict on September 26, the record-breaking Aadhaar litigation had already qualified to be called a ‘landmark case.’

The outlandishly ambitious Aadhaar project that sought to create a database of personal, demographic and biometric information of every Indian resident in the hope of creating an identification ‘platform’ was under the Supreme Court’s lens. By a majority of 4:1, the court partially upheld the project. Shortly afterwards, both the government and the supporters of Aadhaar came out in celebration that their stand had been vindicated and that the founding principles of Aadhaar had received the highest affirmation.

As the text of the judgement came out and the implications gradually sank in, it became clearer that the celebration had been premature. The dissenting judgement by Justice DY Chandrachud had struck down as unconstitutional both the project, which had been in operation since 2009, and the Aadhaar Act, passed in 2016 to give retrospective statutory backing to the project, and actually sought destruction of all the data collected if a reasonable legislation not in violation of the Constitution was not passed by Parliament within a year. Aadhaar’s backers may dismiss it as the minority judgement.

But even the majority judgement, written by Justice AK Sikri, which upheld the project and particularly Section 7 of the Act that allowed the government to insist on Aadhaar authentication for delivering subsidies and benefits flowing from the consolidated fund of India, may have actually delivered the project “death by a thousand cuts”.

The majority judgement struck down the storage of metadata in authentication logs, fearing the potential for surveillance. It also struck down Section 47 of the Act that conferred an exclusive right on the UIDAI to lodge complaints for offences under the Aadhaar Act and extended that right to individuals from whom data was collected. While this change seems like a minor one on the surface, this was a provision vociferously defended by the government and Aadhaar’s backers, effectively premised on the vision that the UIDAI was not only the statutory custodian of personal information collected under the programme, but also its master. That vision has been summarily rejected by the court. Although Section 7 was upheld by the majority, it circumscribed it with a number of caveats and conditions and directed the government to ensure that there was no exclusion whatsoever because of Aadhaar authentication failures.

The most surgical of the ‘cuts’ was reserved for Section 57 of the Act. Mission creep had not only been the modus operandi of Aadhaar, but also one of its founding visions. It was, after all, an identification ‘platform’ that aspired not only to be unique and universal but also ubiquitous. It aspired to be the biblical ‘mark of the beast,’ a mark, a token and a number that would punctuate every transaction that a resident in India undertook. That vision was dealt a body blow as the majority judgement struck down Section 57, preventing private companies from using Aadhaar authentication.

Both the majority and the minority judgements agreed that allowing private players to use Aadhaar authentication posed a real danger of commercial exploitation of personal information collected and maintained for state purposes and that, having no legitimate State aim, was an unconstitutional invasion of the right to privacy. Even for State use other than for delivery of subsidies and benefits flowing from the Consolidated Fund of India, the majority judgement put in place several checks. First, it made it clear that it can only be done for a State purpose specifically provided for by law – like Section 139AA of the Income Tax Act that mandated Aadhaar-PAN linking. Second, that law, however, will be open to judicial scrutiny on the grounds of the doctrine of proportionality, a judicial device available to test the constitutionality of State action infringing a fundamental right.

Some private sector tech company associations, by hanging on to a word here and a sentence there in the 567-page majority judgement, have attempted to obfuscate the effect of the judgement on the private sector’s use of Aadhaar. The binding conclusions of the judgement are unambiguously clear on the total prohibition of Aadhaar use by the private sector. It has been suggested that the private sector could allow ‘voluntary’ Aadhaar identification by their beneficiaries. If that were the case, there would be no meaning whatsoever in the SC striking down the portion of Section 57 relating to Aadhaar use by ‘contract,’ a voluntary legal association by definition! A few have also suggested that Aadhaar ‘card’ could be used like any other identity card.

The other ‘cuts’ were reserved for mandatory Aadhaar-linking to bank accounts and mobile phones. Both the majority (barring Justice Ashok Bhushan, who upheld mandatory bank linking) and the minority judgements agreed that both the exercises were disproportionate and unconstitutional invasions of privacy. The minority judgement went further and ordered that telecom service providers who had collected Aadhaar data based on a DoT circular that has been declared illegal and unconstitutional destroy all that data. Because both the majority and the minority were in agreement on the reasons striking down the Aadhaar-mobile linkage, the directions given by Justice Chandrachud is binding on the central government and the telecom regulator, TRAI. They are now duty bound to immediately direct all telecom service providers to delete Aadhaar-related data within two weeks as laid down in the judgement.

There have been repeated attempts to paint the petitioners against the Aadhaar project as a handful of elites and those with vested interests, etc.

The dissenting judgement in the Aadhaar case has given judicial acknowledgement and affirmation to many of the issues they have raised. The majority opinion, on the other hand, has taken a slightly more indulgent view of the project and the government on many issues. Even then, it could not let the programme go unchanged. In the final analysis, for Aadhaar, it was a close escape from being scrapped.

(Prasanna S is a Delhi-based lawyer who assisted the petitioners’ side in the Aadhaar case)