Gautam Mody

| @ | September 28,2018

The Supreme Court by upholding the constitutional validity of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, has in effect abdicated its key constitutional obligation of judicial review particularly when government rides roughshod over Parliament.

The 4 to 1 majority judgement strikes down the key section of the Act, section 57, that would allow individual profiling to be used for ‘national security’ including by private companies. In the absence of the Supreme Court addressing the question of adequate safeguards for data protection the ruling is disingenuous. In fact, the judgement uses a contradictory and circular logic that in effect renders the entire Act as it stands absolute.

The judgement frees people from the mandatory requirement of Aadhaar for mobile telephones, bank accounts and access to schools and other academic institutions. Yet the judgment ends up covering all bank account holders by linking Aadhaar to the Income Tax Permanent Account Number (PAN) which is required for all accounts with the exception of the Jan Dhan account, and then making it mandatory for Jan Dhan accounts.

The rest of it involving not just entitlements, benefits and subsidies that people receive but, also provident fund which is workers’ own earning, despite the agitation on this count too before the Supreme Court, are all bound by Aadhaar. Hence, one way or another no one is in reality out of the Aadhaar net.

The judgement in effect violates the court’s own landmark ruling on citizen’s constitutional right to privacy by failing to address why biometric data is required at all for benefits and services received from government

The issue no longer matters whether someone is or is not covered by Aadhaar or whether a service is within its preview or not. The question is whether the Supreme Court has carried out its constitutional responsibility. First, the judgement in effect violates the court’s own landmark ruling on citizen’s constitutional right to privacy by failing to address why biometric data is required at all for benefits and services received from government. Second, the judgement fails to take account of the fact that its own orders were violated by both government and private companies during the pendency of the hearings and provides no mandatory direction to government to ensure that both government departments destroy such data acquired by pressure, force, threat and coercion and the necessary monitoring and compliance of such illegally acquired data. Third, the judgment fails to provide safeguards for data protection insofar as it presupposes the data protection efforts carried out so far by government as adequate. It goes on to overlook the fact that the Unique Identification Authority of India as sufficient despite being the data gatherer, disseminator and regulator all rolled into one, while much of the data collection and storage is being done by private companies and unregulated shops and establishments. The court merely advises government to legislate for data protection but does not make such legislation a necessary precursor for the use of Aadhaar.

Finally, the Supreme Court failed to adequately address the issue of the legislation being passed as a ‘Money Bill’ that requires concurrence only of the Lok Sabha and not the Rajya Sabha. The BJP government had passed the Aadhaar bill as a Money Bill as it, along with its partners in government, lacked a majority in the Rajya Sabha. Under our Constitution the Lok Sabha enjoys the power to pass a Money Bill over the Rajya Sabha that allows government to collect and spend money in order to run the day to day affairs of government. This provision was written into our Constitution to ensure that if a duly elected government by the people enjoys a majority in the Lok Sabha but does not enjoy a majority in the Rajya Sabha, it can carry out its basic functions. However, in order to pass legislation on substantive matters especially that may impinge on the constitutional rights, aAadhaar fails as a Money Bill on two counts: one, not all money that goes out in the form of benefits and subsidies to people comes from the country’s treasury and second without any ambiguity workers’ provident fund is workers’ earned wages and is under no circumstances is part of the funds of government nor over which government has any control other than holding it in trust for workers and investing it appropriately

Aadhaar fails as a Money Bill on two counts: one, not all money that goes out in the form of benefits and subsidies to people comes from the country’s treasury and second without any ambiguity workers’ provident fund is workers’ earned wages and is under no circumstances is part of the funds of government nor over which government has any control other than holding it in trust for workers and investing it appropriately. Hence, under no circumstances could Aadhaar have been a ‘Money Bill’. The BJP government, like other governments in the past, misused this provision, the Speaker of the Lok Sabha, who is a BJP nominee, allowed them to do so. Sadly the Supreme Court passed over a clear opportunity of the executive undermining the supremacy of parliament in a democracy.

In his dissenting judgement, Justice D Y Chandrachud states:

“Technology … tests the limits of the doctrines which democracies have evolved as a shield which preserves the sanctity of the individual. Our decision must address the dialogue between technology and power. The decision will analyse the extent to which technology has reconfigured the role of the state and has the potential to reset the lines which mark off no-fly zones: areas where the sanctity of the individual is inviolable. … Technology confronts the future of freedom itself.” He goes on to state “The Aadhaar project raises two crucial questions: First, are there competing interests between human rights and‘welfare furthering technology’in democratic societies? Can technologies which are held out to bring opportunities for growth, also violate fundamental human freedoms? Second, if the answer to the first is in the affirmative, how should the balance be struck between these competing interests?… Efficiency is a significant facet of institutional governance. But efficiencies can compromise dignity.”

In contrast the majority judgement accepts that “… Every transaction on a digital platform is linked with some form of sensitive personal information” and assumes that “people knowingly and willingly, are ready to part with their vital personal information.” This assumption is entirely incorrect.

This judgement pushes the power imbalance further against individuals and their freedoms towards the state and corporations. It further presupposes that all technological advance is always good for humanity and serves no other interest

An overwhelming majority of people when seeking a benefit or a service, which they need, naturally provide information and are unaware and do not even know how and when a government is collecting and using or misusing such data. This judgement pushes the power imbalance further against individuals and their freedoms towards the state and corporations. It further presupposes that all technological advance is always good for humanity and serves no other interest. It goes on to celebrate the consolidation of the ‘Big Tech 5’ completely ignoring how the sheer volume of data they have acquired, through entirely unfair and unregulated means, could even undermine governments and influence electoral outcomes.

It contradicted its own understanding of the Right to Privacy when it granted the state access to and control over the lives of 1.3 billion people denying them all absolute right over their personal and biometric information

While the Supreme Court was generous in its understanding of the Right to Privacy, despite a ten year lag, in the case on Section 377 of the IPC thereby decriminalising sexual relations between consenting adults irrespective of their sexual choices, it contradicted its own understanding of the Right to Privacy when it granted the state access to and control over the lives of 1.3 billion people denying them all absolute right over their personal and biometric information. The Supreme Court overlooked the valid concern of people on the ability of the state to keep such personal information safe from the public domain and to even be used against its own citizens. At a time when the BJP government is clamping down on all right to democratic dissent be it the freedom of association or the right to speech, the Supreme Court has shown that when it comes to actualising substantive rights the court will remain supine to the government.

Aadhaar remain an infringement on the Right to Privacy of all citizens as it also remains an attack on all sections of working people

Aadhaar remain an infringement on the Right to Privacy of all citizens as it also remains an attack on all sections of working people. Although the spirit of the sole dissenting judge may be comforting it brings no relief. Hence, our struggle against Aadhaar must sustain and remain entrenched to win back the rights we have just lost.

 

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