Aadhaar verdict: A landmark verdict for the greater common good
The hearing in the constitutional challenge to Aadhaar started on January 17 and lasted till May 10. On the day the hearings were concluded and the judgment reserved, the Attorney General KK Venugopal remarked that this was the second-longest hearing in the history of independent India after the case of Kesavananda Bharati, where the basic structure doctrine was held as a limitation on the constituent power of Parliament. The length of the hearings in the Aadhaar case is commensurate to the gravity of the issues involved and the judges have risen to the occasion in delivering a judgment of the highest quality. The patience and democratic nature of the hearings cannot be emphasised more. The court was equally attentive to junior lawyers such as myself, as it was to legal giants such as KK Venugopal, Kapil Sibal and P Chidambaram .
Having said that, while the judgments are expansive and deal with several issues, I would like to address a few aspects that make them truly landmark and pushes jurisprudence forward.
At the outset, Justice Arjan Kumar Sikri, who has delivered the majority opinion on behalf of Chief Justice Dipak Misra, Ajay Manikrao Khanwilkar and himself, gives a gentle reminder, not once, but twice, in his judgment that notwithstanding the passions, emotions, despair and rhetoric expressed by both sides, the Supreme Court has adopted a calm and composed approach and decided the matter on the touchstone of constitutional provisions.
The majority view acknowledges the case as a “hard” one and recognises the competing constitutional norms and interests, which arise in the matter and emphasises the role of the Supreme Court as assigned by the Constitution to be the final arbiter of such competing claims. The Court notes that whereas, on the one hand, right of personal autonomy is a part of dignity (and right to privacy), another part of dignity of the same individual is to lead a dignified life as well (which is again a facet of Article 21 of the Constitution). Therefore, in a scenario where the State is coming out with welfare schemes, which strive at giving dignified life in harmony with human dignity and in the process some aspect of autonomy is sacrificed, the balancing of the two becomes an important task which is to be achieved by the courts.
The majority opinion has tested the validity of the Aadhaar Act through a rigorous four-stage proportionality test and has rejected the arguments on surveillance and breach of privacy after examining the entire Aadhaar ecosystem and satisfying itself of the security measures deployed at each stage of the process from enrolment to authentication.
Dignity as a community value has guided the court to explore the role of the State and community in establishing collective goals and restrictions on individual freedoms and rights on behalf of a certain idea of the good life.
The Supreme Court has addressed the heart of the issue and held that enrolment in Aadhaar of the unprivileged and marginalised section of society, in order to avail the fruits of welfare schemes of the government, actually amounts to empowering these persons. On the one hand, it gives such individuals their unique identity and, on the other hand, it also enables such individuals to avail the fruits of welfare schemes of the government.
In that sense, the Aadhaar scheme ensures dignity to such individuals. The court has cautioned that this is not tantamount to accepting that when dignity in the form of economic welfare is given, the State is entitled to rob that person of his liberty. After a detailed and careful analysis of the Aadhaar regime, the court has held that upon balancing of the two facets of dignity it is found that the inroad into privacy rights is minimal coupled with the fact that there is no data collection on the movements of such individuals, when they avail benefits under Section 7 of the Act, thereby ruling out the possibility of creating their profiles.
The use of data by private entities, however, under Section 57 pursuant to a contract has been read down since a contractual provision is not backed by a law and, therefore, the first requirement of proportionality test – that there must be a law, is not met.
Zoheb Hossain is an advocate practising in the Supreme Court of India and the Delhi High Court. He represented the UIDAI before the Constitution Bench in the Aadhaar challenge
The views expressed are personal