The Aadhaar ordinance raises serious constitutional concerns
Late on Thursday night, the Union Cabinet approved the promulgation of the Aadhaar and other Laws (Amendment) Ordinance, 2019. This ordinance, as the name suggests, amends the Aadhaar Act, in the wake of the Supreme Court’s (SC) September 2018 judgment that held parts of it to be unconstitutional. Perhaps the most significant of the amendments is authorising private parties — i.e., corporations — to use and profit from the personal data that is stored in the Aadhaar database.
There are two serious problems with these amendments. The first is enacting them through an ordinance. These amendments were originally drafted as part of a bill, which was passed by the Lok Sabha in December. The bill, however, was not passed by the Rajya Sabha. Consequently, it lapsed with the end of the parliamentary session. The ordinance, therefore, is an attempt to achieve by executive fiat what the government could not achieve through the ordinary legislative route — i.e., through Parliament.
Both the constitutional text, as well as SC judgments, are clear that the use of ordinances to bypass the legislative process is a fraud on the Constitution. Article 123 of the Constitution specifies that the president, on the advice of the Union Cabinet, may promulgate an ordinance if “circumstances exist which render it necessary for him to take immediate action”. Ordinances, therefore, are tools to be used in cases of emergencies, when the Parliament is not sitting, but urgent action needs to be taken (for example, in dealing with an armed conflict or a natural calamity). Ordinances are not meant for a situation in which, having been unable to get what it wants through Parliament, the government nonetheless rams it through by a presidential decree.
In 2017, a seven-judge bench of the Supreme Court affirmed this fundamental principle, and reiterated the basic point that ordinances were not — and could not — be used as substitutes for the legislative process. A fundamental feature of our parliamentary democracy is bicameralism: the idea that the legislature is composed of two Houses, both of which have an essential role to play in lawmaking. While the Lok Sabha expresses the will of the majority, the Rajya Sabha represents the interests of the several states, as well as bringing a different set of perspectives — not always affected by immediate electoral constraints — to the scrutiny of bills. The ordinance route effaces the role of both Houses, and makes the Union Cabinet supreme. It is, therefore, an exceptional remedy, to be used only in exceptional times. As the Supreme Court held in 2017, an ordinance that clearly failed the emergency standard would be struck down as unconstitutional. The Aadhaar ordinance manifestly does not meet this stringent test, and will no doubt soon be challenged in court.
The Aadhaar amendments are also worrying because they attempt to directly overturn the Supreme Court’s September 2018 judgment on the constitutional validity of Aadhaar. In that judgment, the Supreme Court was clear that the use of the Aadhaar database by private parties enabled commercial surveillance, and was therefore unconstitutional. The ordinance ignores that finding, and authorises private sector use anyway, including by bank and telecom companies. All this, it must be noted, is taking place in the absence of a comprehensive data protection, anti-surveillance, and privacy law, which is yet to be enacted. This multiplies the dangers of this move, which were recognised by the Supreme Court in its Aadhaar judgment, and is certainly not permitted under our constitutional scheme.
There are other ways in which the Aadhaar amendments contravene the spirit of the Supreme Court’s judgment. For example, through amendments to other laws, they now purport to make the use of Aadhaar by phone and banking companies “voluntary.” A close look reveals, however, that voluntariness is a chimera: the options provided are between Aadhaar, a passport, or other identity documents that the government may notify. Given, however, that less than 10% of Indians possess a passport, for a large majority, this makes Aadhaar authentication effectively mandatory if they want to use a phone or operate a bank account. This was precisely what the Supreme Court held unconstitutional, on the basis that individuals deserved to have a meaningful choice in how they identified themselves to the State, or to other private parties.
Lastly, the Supreme Court judgment also made clear that if information in the Aadhaar database had to be disclosed in the interests of national security, it would have to be sanctioned by a judicial officer. The new amendments ignore that as well, leaving it to the decision of a secretary-level officer.
In both its form and its content, therefore, the Aadhaar ordinance raises serious constitutional concerns. It remains to be seen how the government will defend it before the court.
Gautam Bhatia is an advocate in the Supreme Court
The views expressed are personal
[Disclaimer: The author was part of the legal team that challenged the constitutional validity of Aadhaar.]