Aadhaar Hearing [Week-1] Preliminaries

From 17 January 2018, a five-judge bench of the Supreme Court of India started hearing final arguments in the much-awaited Aadhaar case. For reasons that have been extensively debated elsewhere (see for example here, here and here), the Aadhaar challenge will require the Court to answer questions of critical constitutional significance.

This is the first among a series of posts where I will outline my thoughts on the arguments in the Aadhaar case. It is not my aim to predict or pre-judge the Court’s conclusions; neither is it to take sides. These posts are intended as a commentary on the arguments as they develop.

Senior Counsel Shyam Divan opened the arguments for the Petitioners on Wednesday. Currently, the arguments are in their preliminary stages. All I intend to do in this post, therefore, is to outline four important themes: (a) the context; (b) the composition of the bench; (c) the nature of the Petitioners’ challenge; and (d) retrospectivity.

(A) The Context

To judge the constitutional validity of the Aadhaar scheme, the Court has had to adopt a three stage-process: first, adjudicate whether the Constitution of India guarantees a fundamental right to privacy. This question was answered affirmatively by the nine-judge bench in KS Puttaswamy v Union of India 2017 (10) SCALE 1. Secondly, consider the more difficult question, what is the standard of judicial review according to which privacy infractions must be tested? Although Puttaswamy offered some guidance on this point, there remains some scope for debate. Finally, the Court will need to apply this to the Aadhaar fact scenario.

The present Aadhaar bench has its work cut out. The first two steps have already been taken by the nine-judge bench. In one sense, this bench merely needs to apply the decision in Puttaswamy to the Aadhaar scheme. Does the Aadhaar scheme withstand judicial scrutiny? Does it surpass or does it violate the standard of judicial review set out in Puttaswamy?

(B) Bench Composition

 It is interesting to note the composition of the bench for the Aadhaar hearing. As is well known, the Aadhaar challenge was first considered by multiple two judge benches of the Supreme Court. It then went to a three-judge bench which referred it to a five-judge constitution bench. Eventually, the question of principle was referred to the nine-judge bench in Puttaswamy. Having answered that question, the final determination of the validity of Aadhaar is now before this five-judge constitution bench. Many of the judges who were part of the earlier benches continue to be sitting judges of the Supreme Court. Certainly, eight out of the nine judges who upheld the fundamental right to privacy and expressed views on the standard of judicial review in six separate, concurring opinions, are part of the roster. Notably, however, only one out of those eight judges is a member of the current bench.

This is not a comment on the ongoing discord in the Supreme Court. Quite separately, there is something to be said for continuity. Judges who spent many months turning their judicial mind to the scope and existence of the right to privacy in India ought to have been preferred. Certainly, judges who propounded the constituent elements of the right to privacy and its applicable judicial standard of review may have been better suited to apply that standard to a particular fact scenario, especially one as contentious as Aadhaar.

(C) Nature of the Petitioners’ Challenge

 Having set out the context of the hearing and the composition of the bench, I will now consider the nature of the Petitioners’ challenge. The arguments are currently in their embryonic stage. Therefore, all that we can discern at present are the bare bones.

As a general observation, the Petitioners distinguish the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act (‘the Act’) from what they call the ‘Aadhaar project’. The former is the 2016 statute while the latter is the entire Aadhaar scheme (started in 2009) of which the Act is but a part. Therefore, while they challenge the constitutional validity of the Act, they also mount a number of attacks against the Aadhaar scheme in general. In particular, the following four points stand out. The first three are fundamental rights challenges, the final one is a legislative process challenge.

First, the Petitioners object that the Aadhaar project is part of the infrastructure of a surveillance state (‘surveillance state challenge’). This, they argue, is constitutionally impermissible. On the afternoon session on 17 January, for example, Mr Divan placed particular emphasis on the fact that the Aadhaar scheme permits the State to build up the complete profile of an individual’s actions. The government can then, if it so wishes, trace back details of an individual including locational data.

 Secondly, the Petitioners raise a number of data protection issues (‘data protection challenge’). The process of data collection and storage, it was argued, is compromised. This is because the UIDAI exerts negligible control over the private parties that are in charge of the data. This leads to the real possibility of misuse.

Thirdly, the Petitioners argue that the Aadhaar scheme ought to necessarily depend on individuals’ consent (‘consent challenge’). As a general rule, the absence of authorisation by the owner of personal information—or put differently, their lack of ‘consent’—is an essential ingredient for the breach of informational privacy. The Petitioners’ main concern appears to be that consent in the context of Aadhaar is uninformed, bereft of adequate counselling and sets a dangerous trend on barter of fundamental rights. They contend that an individual cannot be asked to give up information in return for welfare rights (i.e., benefits available under the Aadhaar scheme). This is coercing consent from individuals, or so the Petitioners argue.

Finally, they also raise concerns regarding the parliamentary process of the Aadhaar Act (‘legislative process challenge’). The Act was passed in Parliament as a money bill. As a consequence, it did not have to secure an affirmative vote in Rajya Sabha. The Petitioners argue that this was a mischaracterisation of the nature of the legislation. Consequently, they argue that the legislative process that led to the enactment of the Act was itself flawed.

 (D) Retrospectivity

Mr Divan also raised an interesting challenge based on the legislative authorisation for Aadhaar. Between 2009 and 2016 (when the Aadhaar Act was enacted) the UIDAI scheme operated with no legislative backing. Whatever the present position may be, during that period, Mr Divan suggested, the UIDAI scheme was unarguably a breach of privacy.

It is well known that rights under Article 21 of the Indian Constitution can only be restricted by or under the authority of a law passed by the Parliament. Between 2009 and 2016 there was no legislative backing for the UIDAI’s actions. Without entering into a reasonableness analysis therefore, can one conclude that during this period, the Aadhaar scheme was a violation of privacy?

A similar argument had succeeded 56 years ago in Kharak Singh v State of Uttar Pradesh AIR 1963 SC 1295. In that case, the State of Uttar Pradesh had carried out surveillance under the purview of the UP Police Regulations. The Supreme Court had no difficulty in concluding that the scheme was an invasion of Article 21. It was held:

"[T]he regulations contained in Ch. XX had no such statutory basis. They were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be “a law” which the State is entitled to make under the relevant clauses 2 to 6 of Art. 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Art. 19 (1); nor would the same be “a procedure established by law” within Art. 21. The position therefore is that if the action of the police, which is the arm of the executive of the State, is found to infringe any of the freedoms guaranteed to the petitioner, the petitioner would be entitled to the relief of mandamus which he seeks to restrain the State from taking action under the regulations".

In response, the Respondents may rely on Section 59 of the Aadhaar Act 2016. It reads:

Anything done or any action taken by the Central Government under the Resolution of the Government of India, Planning Commission bearing notification number A-43011/02/2009-Admin. I, dated the 28th January, 2009, or by the Department of Electronics and Information Technology under the Cabinet Secretariat Notification bearing notification number S.O. 2492(E), dated the 12th September, 2015, as the case may be, shall be deemed to have been validly done or taken under this Act.

The Respondents will argue that Section 59 retrospectively provides the requisite legislative sanction. This will require the Court to determine a significant question of constitutional law:  can a legislation retrospectively validate an executive action that violated a fundamental right? The answer to this question and the consequences that flow from it merit careful judicial consideration.

[The author is a D Phil candidate in law at the University of Oxford. I am grateful to Dr Tarunabh Khaitan for comments]