Judges, in search of ‘balance’, failed test of clarity

The Supreme Court pronounced its verdict on Aadhaar through a majority judgement signed by three of the five judges, a concurring judgement of one, and a stinging dissent by Justice DY Chandrachud.

Broadly speaking, the majority upheld the Aadhaar system with a few restrictions. However, the reasoning employed and the gaping holes in the opinion are a stark indicator of how much further we have to go. The fact that the judgement begins with a whatsapp ‘good morning’ forward sets the tone for the next 567 pages of legal acrobatics.

To start with, the Aadhaar Act was passed as a Money Bill, in order to avoid any hurdles in the Rajya Sabha. One might have imagined that this blatant constitutional fraud would be called out by our esteemed judges. Indeed, it formed the bulk of Justice Chandrachud’s dissent. A Money Bill is a device set out in Article 110 of the Constitution by which a Bill that is certified by the Speaker of the Lok Sabha to relate only to matters of taxation, revenue, etc.

The Aadhaar Act, 2016, was passed as a Money Bill despite including several provisions that had no relation to the subjects mentioned in Article 110 that determines whether or not a Bill can be declared a Money Bill. The mala fides of this government could not have been more blatant. The Act thus violated the Constitution and undermined the very idea of a bicameral legislature that is the cornerstone of our democracy. This should have been a preliminary question for the Supreme Court, for if the enactment itself was illegal, then the substance of the Act would be irrelevant. Instead, the court approached this issue half-heartedly, and only after it had approved the substantive structure of the Act, reducing this most basic question to a fait accompli.

The second issue is, of course, whether the actual modalities of Aadhaar constitute a reasonable and legitimate intrusion into our fundamental rights. The test for this, as has been accepted by the court in this as well as previous judgements, is the test of proportionality. This test requires that any legislative intrusion into our rights should meet a four-pronged test: a legitimate aim, a rational nexus between the aim and the measures adopted, the measures should be the least restrictive measures possible to achieve that aim, and lastly, overwhelming public interest.

The Aadhaar Act on paper, at least, set out a clear and legitimate objective – the targeted delivery of welfare benefits, subsidies etc. But on the next two limbs, it fails spectacularly. There is absolutely no rational nexus between facilitating the transfer of benefits and making it mandatory. It is also by no means the least restrictive or intrusive mechanism to achieve its aim. Various alternatives, such as smart cards, were suggested to the court, but instead of engaging with them, the majority simply stated that no such alternatives were suggested! Where proportionality demands that the Act be justified, the court has instead adopted the reverse approach – asking why not, instead of why.

The majority opinion rests its entire conclusion based on assurances of the government rather than actual evidence, ignoring the numerous instances of data breach that were pointed out to it. Instead, it chose to rely on the PowerPoint presentation made by the CEO of UIDAI which, it must be mentioned, was not even on affidavit. Yet, this presentation is faithfully reproduced in the judgement and we are told we must believe it because the government is saying so. On PowerPoint no less!

This reliance on ‘fact’ allowed the court to ignore the question of whether or not surveillance is actually illegal, by stating instead that it hasn’t occurred. Unwittingly, this provides a platform for future litigation. For if this factual construction is later shown to be wrong (which it is), then not only does the entire judgement fall, but the question of law on surveillance, its legitimacy, its limits, still remains open even as on date. This is important. Given that no defence of Aadhaar has as yet made a case for why it should be mandatory rather than voluntary, the only conclusion is that the actual aim is surveillance.

The most worrying aspect of the judgement is its shoddy and disrespectful treatment of the poor and marginalised sections of society. Countless instances have surfaced, and have been pointed out to the court, of exclusion due to technical failures to authenticate. People have died as a result of this exclusion. The court’s attitude to this argument is manifest in a reading of Paragraph 314 of the majority opinion, where entire chunks of material is absent and the paragraph instead contains:

TO DICATE FURTHER

Re.: Studies on exclusion

Re. Fingerprints of disables, old persons etc. See other mode of identity”

That the majority did not consider this to be a crucial part of the issue says everything. In the next paragraph, it contradicts itself by saying that in case of such failures, Section 7 allows for other identity proof, as it is only meant to be an enabling feature and not a mandatory one.

And round and round we go.

A fine balance?

The judgement has been praised by backers of Aadhaar as being balanced, finding a middle ground between government encroachment and civil liberties. It must be pointed out, that is not the court’s job. The court is not supposed to “balance” legality and illegality. It is not supposed to find a middle ground between constitutionalism and its violation. The idea that all dispute resolution should be a compromise when there is a clear right and wrong is a myth, and in trying to find this “balance,” the court has only embarrassed itself. The majority judgement, in this case, fails the most basic test of clarity, as it leaves us with far more questions than answers and will almost certainly be subject to multiple clarification applications as well as possibly a review.

(The writer is a Supreme Court lawyer)