Previously the Supreme Court of India ruled that the controversial Aadhaar digital identification project is constitutionally valid but struck down Section 57, which allowed transfer of citizens’ details to private entities. Photo: Wikimedia Commons

In a majority ruling of 4-1, India’s Supreme Court on Wednesday upheld the controversial digital identification project known as Aadhaar, but a historic dissenting note from one judge called the program “wholly unconstitutional.”

The ruling was read out by Justice Arjan Kumar Sikri, which was concurred by the chief justice of India, Justice Dipak Misra, and Justice Ajay Manikrao Khanwilkar, upholding the program. But it also struck down some of its provisions to give minor relief to some sections.

The ruling struck down the requirement to link mobile-phone numbers, bank accounts and school admissions to the unique digital identity program, but made it mandatory to link it to income-tax returns. Importantly, it also struck down Section 57 of the Aadhaar Act, which mandated that private companies could also access this data. By removing that section the judges gave partial relief to the petitioners.

The majority of the judges of the apex court also upheld the passage of the Aadhaar Act as a money bill by the government led by Prime Minister Narendra Modi. A money bill cannot be held back by the Rajya Sabha (upper house of Parliament) once it has been cleared by the Lok Sabha (lower house). While the Modi government holds a majority in the Lok Sabha, it does not have such numbers in the Rajya Sabha. A money bill ensures that the opposition parties do not have the option to strike it down, wholly or partially.

As lawyer Mihira Sood pointed out on Twitter, the judgment could have created a slew of fresh problems. “It is a huge loss for civil liberties. The Permanent Account Number [PAN, mandatory for income-tax purposes] linking makes it [Aadhaar] mandatory, [and] allowing it as a Money Bill opens doors to further constitutional abuse,” she wrote.

A surveillance state

For years, a host of legal, technology and civil-rights experts had warned against the enormous potential to misuse the digital identity program. Introduced by the Congress-led United Progressive Alliance (UPA) government in 2009, the program saw a slew of protests from many quarters. The government chose Nandan Nilekani, one of the co-founders of one of India’s biggest information-technology companies, Infosys, as the chairman of the newly created agency to implement the program.

But legal experts such as Usha Ramanthan and many others immediately warned that the project had the potential to turn India into a surveillance state. Their concerns were echoed by Parliament’s Standing Committee on Finance, which stated in its 42nd report that many of the claims cited to justify the program’s existence were false.

Soon several petitions were filed to challenge the program, and a few interim orders by the Supreme Court in 2015 and 2016 tried to limit it. The program was also criticized publicly by Narendra Modi when he was chief minister of Gujarat. However, after winning the general elections in 2014, his central government started implementing the project and also ensured its expansion beyond the limitations imposed by the apex court.

As the petitioners had repeatedly pointed out, the program allowed the government tremendous access to citizens’ private data, and therefore had immense potential for misuse. They also pointed out that it violated the basic structure of the Indian constitution. An offshoot of the petitions led to a debate on privacy as a fundamental right. In August 2017, a nine-judge constitutional bench of the Supreme Court ruled that privacy was a fundamental right.

However, while recognizing that there are some concerns about the misuse of data and the inability of citizens to complain, the majority of the judges ruled on Wednesday that the program was constitutional and therefore valid. The Supreme Court ruled that some sections were problematic and struck them down. Section 47 barred citizens from filing complaints if they felt their data was misused; the court ruled that individuals must be given that right.

Section 33(1) and (2) had given rise to fears of surveillance by the state. While upholding it, the majority of the judges ruled that individuals must be given the opportunity of a hearing, and only an officer above the rank of a joint secretary could seek data held by the Aadhaar program.

A historic judicial dissent

While the majority ruled to uphold the program, it was left to Justice Dhananjaya Y Chandrachud to file a dissenting judgment. Calling the program “wholly unconstitutional,” he also came down heavily on the Modi government: “Propriety demands that [the central government] should have approached this court for variation of its orders.”

In his dissent, Chandrachud was reminiscent of justice Hans Raj Khanna, who had filed a similar dissenting note in the ADM Jabalpur vs SS Shukla judgment. That 1975 Supreme Court judgment led to the imposition of the infamous Emergency by then-prime minister Indira Gandhi the same year.

The case had challenged the government’s unfettered powers to detain individuals without proof under the Emergency. While the majority of the judges ruled in its favor, thus making the imposition of the Emergency legally tenable, it also led to the suspension of constitutional rights for several years until 1977. Interestingly, Justice Chandrachud’s father was one of the majority judges in that case.

Chandrachud was unsparing in his criticism of the Aadhaar program, pointing out that it also posed a threat to national security. It allowed the Unique Identification Authority of India (UIDAI) to share data with private and foreign firms. This, he said, had inadequate safeguards and mere contracts could not prevent its misuse. He also argued that “allowing private players to use Aadhaar will lead to profiling which could be used in ascertaining political views etc of citizens.”

On the linking of Aadhaar with income-tax records, he opined that this was also illegal. “The linking of Aadhaar with the PAN card is not valid because [the] Aadhaar Act in itself is unconstitutional,” he said. “Constitutional guarantees cannot be left to risks posed by technological advancements.”

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