A predictable letdown: The journey from Right to Privacy to Aadhaar verdict

[dropcap]I[/dropcap]n the majority judgment passed by the five-judge bench of the Supreme Court in the Aadhaar matter ( "the Aadhaar judgment") yesterday — September 26, 2018, the Supreme Court by a 4:1 majority has held that the Aadhaar project does not tend to create a surveillance state and further declared the Aadhaar Act, save and except some provisions, to be constitutionally valid. This decision makes Aadhaar mandatory for those filing Income Tax Returns (ITR) and to avail Permanent Account Number (PAN) for the purpose. It also makes Aadhaar mandatory for those availing facilities of welfare schemes and government subsidies, thus making it compulsory for the poor and marginalised, except children who cannot be precluded from availing schemes due to lack of Aadhaar card.

Apart from this, the decision sets aside mandatory linking of Aadhaar to bank accounts, for mobile SIM card and sets aside the provision allowing private entity or company from seeking Aadhaar identification from individuals. It also excludes students in CBSE, UGC, NEET, schools from requirement of Aadhaar card and has struck down the national security exception under the Aadhaar Act. In effect the judgment makes the obtaining of Aadhaar card mandatory for a majority of the population. What is striking however, is how the judgment completely does away with the recognition of the right to privacy of the country's poor and marginalised under the pretext of their own interests and protection of their identities, leaving them no choice but to opt for Aadhaar to even be included in the social programme.

The judgment has brought with it disappointment to the wide array of petitioners who fought a hard battle ridden with delay, and also to the several retractors of the Aadhaar project in civil society – a steadily growing constituency in the background of increasing awareness on surveillance, data breaches and reported instances of security breaches concerning Aadhaar. Even while the matter was pending, the state and third parties blatantly disregarded the interim orders of the Supreme Court, with both government and private entities continuing to demand Aadhaar registration and linkages to avail services, leading to much confusion and in effect mandatory imposition of Aadhaar for certain periods in several services and schemes. While yesterday's judgment has allayed some concerns, while however reinforcing Aadhaar and with it the surveillance debate, the fight appears to be far from over.

The Aadhaar case is commended for resulting in the "high potential" landmark judgment passed the nine judge bench of the  Supreme Court in the case of Justice Puttaswamy (referred to as "the privacy judgment") in August 2017, which unanmiously declared right to privacy as a fundamental right, and which is the bedrock upon which the three judgments in the Aadhaar case – the majority judgment drafted by Justice Sikri, Justice Sapre's concurring judgment and the dissenting judgment by Justice Chandrachud – stand.

We have already in an earlier article discussed at length the privacy judgment. However, the journey of this recognised right to privacy from the privacy judgment to Aadhaar is one of cause and consequence.

Crucially, even before the privacy judgment, the Supreme Court had since 40 years  been recognising the right to privacy as a fundamental right and a large number of cases have been decided by the Supreme Court on the footing that right to privacy is a fundamental right. The privacy judgment opened up vast possibilities for expansion of rights. Apart from being  a judgment of a larger Bench and therefore settling the law once and for all, the question before everyone was whether the judgement was merely a restatement of the existing law or did it make any jurisprudential advances or regressions from the earlier view of the Supreme Court. Also what would be its likely impact on future challenges to various legislations based on right to privacy. One such matter before the Supreme Court apart from the Aadhar case, was the Navtej Johar case, challenging the criminalisation of consensual gay sex under Section 377 of the Indian Penal Code (IPC), 1860, in which the judgment (referred to as "the 377 judgment") was passed earlier this month.

The crucial aspect in the application of the privacy judgment, incidentally drafted by Justice Chadrachud on behalf of five of the nine judges of the bench, on future litigation was the parameters of the restriction on right to privacy laid down in the form of a triple test. There could be no quarrel with the fact that privacy can only be restricted through legislated law and not by administrative instructions not having any foundation in legislation. Similarly proportionality test i.e. the restriction on privacy must be proportionate and limited to the mischief sought to be avoided. The restriction must be narrowly tailored and cannot be broad based. The problem area however is the criteria of "legitimate state interest" test. In the case of Gobind v. State of Madhya Pradesh, being the foundation case on privacy law, the Supreme Court had insisted that the test to decide whether privacy can be restricted should be 'compelling' state interest. This was diluted to 'legitimate'  state interest under the privacy judgment. In the Gobind judgment, the Court relied on various US Court decisions to conclude that right to privacy  is a fundamental right and can be denied only when there is a compelling state interest, a concept derived from US law. The Court in fact made a distinction between compelling state interest and permissible state interest and held that the test would be whether the state interest is of such paramount importance as would justify an infringement of the right. The judgment brought in the requirement of narrow tailoring of the regulation to meet the needs of a compelling state interest. Pursuant to the Gobind judgment, more clarity on the compelling state interest test came through the judgment passed by the Supreme Court in the case of Subhash Chandra. In this case, the responsibility was pinned on the court to establish whether the 'compelling' state action does not end up abrogating competing rights of others, by examining two aspects – one, that the ends purported to be sought by the executive are 'compelling' and two, that the law is narrowly tailored i.e. only adequately to advance those compelling ends.

However, it is true that the strict rules of the compelling state interest test have been sparingly applied in varied cases. For instance in the the case of Suchita Srivastava, while examining women's right to make reproductive choices as a part of "personal liberty" under Article 21, the Supreme Court held that provisions of the Medical Termination of Pregnancy Act, 1971 can also be viewed as reasonable restrictions that have been placed on the exercise of reproductive choices, in as much as there is also a "compelling state interest" in protecting the life of the prospective child. In the case of Rakesh Kumar, the Supreme Court observed that the compelling state interest in sagfeguarding interests of weaker sections by ensuring their representation in local self government clearly outweighs competing interest in not curtailing choices available to the voters.

Meanwhile as precurrsor to the Section 377 judgment, in the now overruled judgment in the case of Suresh Koushal, the Supreme Court rejected the contention of the parties challenging Section 377 of the IPC criminalising homosexuality, that there exists no compelling interest to justify the curtailment of an important fundamental freedom. The privacy judgment opened up possibilities for reconstituting a challenge to the constitutionality of Section 377 on the ground of abrogation of the right to privacy by declaring clearly its disagreement with the same court's judgment in the Koushal case and holding that sexual orientation is an essential attribute of privacy. The five-judge bench of the Supreme Court in the Section 377 judgment (three judges of which – Chief Justice, Justice Khanwilkar and Justice Chandrachud – were part of the bench hearing the Aadhaar matter) has since decriminalised homosexuality, thereby overruling the court's view in the Koushal case and further gone on to expand the concept of constitutional rights. However it is not surprising that the Section 377 judgment does not do so by applying the compelling state interest test, although the Delhi High Court had in its impugned judgment[i]. Instead the less narrow standard of legimitate interests of the state vis a vis the intimacy between consenting adults of the same sex, was applied in the 377 judgment and the legimitate state aim was found to be lacking.

While Justice Chandrachud in the privacy judgment discussed the concept of narrow scrutiny under "compelling state interest" as laid down in Gobind's case, it is clearly swapped for the much broader concept of "legitimate state interest". It was observed that the balance between data regulation and individual privacy raised complex issues requiring delicate balances to be drawn between the legitimate concerns of the State on one hand and individual interest in the protection of privacy on the other. The privacy judgment proceeded on the basis that the State does have legitimate state interests to protect, that may come in the way of an individual right to privacy which would include (but is not expressly limited to) protecting national security, preventing and investigating crime, encouraging innovation and the spread of knowledge, and preventing the dissipation of social welfare benefits, most of which were arguments made by the State in favour of Aadhaar.

While Justice Chandrachud in the Aadhaar case has presented the dissenting view in what is clearly a landmark minority judgment, refusing to agree with his fellow brothers that the Aadhaar Act is constitutional, it is his own judgment in the privacy matter that has paved way for restricting the right to privacy for so-called 'legitimate' purposes and aims of the State in the majority judgment in the Aadhaar case. The privacy judgment failed to appreciate that the interpretation of what constitutes a legitimate purpose  in its supercedence over the fundamental right, was left open and not restricted in any tangible form. This ambiguity has now come handy in its selective application for restricting the right to privacy of many in the majority judgment in the Aadhaar case.

In fact, as an instance for such purpose, the privacy judgment had itself suggested that data mining if used by the State for ensuring that resources are deployed to legitimate beneficiaries, would constitute a legitimate restraint on the right to privacy. While the privacy judgment recognised the manner in which the legitimate interference of the right to privacy by the State could be misused in profiling and discriminating upon citizens on the basis of racial or ethnic origin, political or religious beliefs, genetic or health status or sexual orientation, there was no acknowledgment of how data collected for so-called legitimate purpose, could infact be misused in any case by an authoritarian regime or individuals, non-state actors and corporations with vested interests,  to profile citizens and track their movements, stifle dissent, influence political decision making etc. Meanwhile, the Aadhaar judgment has benefited from this gap to completely debunk the possibility of profiling relying on the Aadhaar authentication process and on the premise that profile content would only consist of demographic and biometric information, thereby completely overlooking the possibility and threat of misuse of data/information collected from individuals, by the state itself or by corporates / non-state actors due to information leaks or unauthorised access.

As feared, the the majority judgment holds that the Aadhaar Act has legitimate purpose, is least intrusive and is 'just, fair and reasonable' in the absence of strict scrutiny and thus upholds the validity of Aadhaar – a programme which involves not only the world's largest centralised digital data base but also carries the potential for being the largest surveillance and profiling tool controlled by the State, with evidence of already being prone to security breaches. Ironically, Justice Chandrachud rejects Aadhaar in his dissenting judgment, holding that Aadhaar causes unwaranted intrusion into the right to dignity and fundamental freedoms guaranteed under Indian Constitution, while failing to satisfy the test of necessity and proportionality.

While hesitating to apply the narrow and strict standard of "compelling state interest" to the right to privacy in the privacy judgment, in our view, Indian legal jurisprudence lost a brilliant opportunity to safeguard the citizens from the State and crony partners trampling this recognised right to privacy over so-called legitimate concerns. Had the nine judge bench in Puttaswamy, chose to apply the restriction on the right to privacy on the basis of the standard of a "compelling state interest" in atleast certain identifiable circumstances, as briefly deliberated by Justice Chelameswar in his judgment in the privacy matter, there would have been a greater onus on the State as well as the Court to recognise the right to privacy of citizens, and to prove its compelling interest to infringe such a right, while also satisfying the narrow-tailoring requirement and proportionality test, which in combination Aadhaar would have been more likely to fail.

With the Supreme Court all set to pass the judgment in the challenge to Adultery law today, September 27, 2018, the discussion on right to privacy will continue, having been part of submissions made before the bench. We are just at the threshold of various challenges to legislations which are likely to play out in the Courts by invoking right to privacy and the next few years will determine the course of events and the development of jurisprudence around it. While the privacy judgment is path breaking, there are enough black holes for jurisprudence to develop in either way.