This post is a reproduction of the remarks I had prepared for the meeting of the NUALS Constitutional Law Discussion Group on 27/08/2018 regarding the Judgement of the court in Justice K.S. Puttaswamy (Rtd.) v. Union of India.
Justice K.S. Puttaswamy (Rtd.) v. Union of India (II)
Preliminary notes from a cursory reading
By Ananth Krishna Subhalakshmy
Bench: Dipak Misra, CJI, A.K. Sikri, J., A.M. Khanwilkhar, J., D.Y. Chandrachud, J., Asok Bhushan, J.
Opinions by: 1. A.K. Sikri, joined by Dipak Misra and Khanwilkar, 2. Asok Bhushan 3. D.Y. Chandrachud (Dissenting).
Concerning: The validity of The Aadhar (Targeted delivery of financial and other subsidies, benefits and sevices) Act, 2016 and related rules and circulars
Held: The Act to be Constitutional, but struck down certain provisions on the basis of unconstitutionality.
Text of prepared remarks
Hello and Good Evening Everyone,
Welcome to this meeting of the NUALS Constitutional Law Discussion Group, and it’s been quite a ride for us the past few days – The Supreme Court gave its judgement on issues ranging from reservation in promotions to adultery the past few days. There’s not enough time for us to unpack everything, so we today decided to concentrate on the most important judgement up until now, the one on Aadhar. Now, I am not going to list what was decided, but rather what I found out through a cursory reading, as I did for Navtej Johar.
The Supreme Court has held in 4:1 Judgement that the Aadhar Act (and therefore the programme) is Constitutional on the whole as you already know. The court has struck down or read down certain specific provisions of the act, struck down circulars and rules all on the basis of their unconstitutionality due to the violation of the right to privacy under Article 21 which the court had in Justice K.S. Puttaswamy and Anr. v. Union of India (I). A bench of three Justices on 11 August 2015 referred the issue of whether Privacy is a fundamental right to a Constitutional Bench, which in turn was referred to a Nine judge bench of the court, who held that the Constitution did indeed grant a ‘right to privacy’ under Articles 14, 19 & 21. I personally believe it is implied under Article 21 (“No person shall be deprived of his life or personal liberty”). The constitutional rights given under Article 14 and 19 are quite distinct from that given under 21. The question in this case was therefore to what extent the Aadhar scheme violated the right to privacy. The Court had to evaluate section by section the constitutionality of the act, which of course is a rigorous and extensive process. But does that merit a 1448 page Judgement? At the risk of sounding repetitive, the court is mistaking lengthy judgements for good Judgements. The culture of the court really does have to change, as I mentioned last week – it is spiralling itself into even more elitism than ever before. That does not bode well for the health of the republic.
There are also a lot of quirks in this judgement. I have not gone from cover to cover of the judgement, but there are a lot of things that would be amusing to the reader. Here are the things that I noticed:
The Majority Judgement has a table where it lists the various things that the makers “borrowed” from other constitutions
The Majority Judgement has in its content Powerpoint slides that the CEO of UIDAI presented before the court! One wonders when the Surpeme Court will give us the first Audio-Visual Judgement! (Oh wait, Livesteam is already happening!)
There is a 15 page summary at the end of the majority judgement that one wishes were the whole of the Judgement!
Justice Chandrachud’s dissent has a proper table of contents and subheadings that make it much more simpler to read (as easy as it can get)
Justice Bhushan’s opinion is the shortest, at 120 pages. Which should have been the upper limit of any judgement, ever.
It must be emphasised that the only reason Aadhar programme has survived the Supreme Court is due to the enactment of The Aadhar (Targeted delivery of financial and other subsidies, benefits and sevices) Act, 2016 by the Parliament. Without this statutory cover, this programme was an administrative one without any backing. The Government of India also constituted under Retired Justice B.N. Srikrishna a committee to present a Data Framework for India. The court in this Judgement has referred the Committee’s report and directed the respondents (The Union of India) to enact a data protection law on the basis of the report. The Union Government has undoubtedly reasoned that the constitution of this committee and report would have influenced the court and put at rest some of the fears of the Supreme Court. The arguments by the Union Government in the case were focused on their contention that the Aadhar programme were for the targeted subsidy delivery by the state.
An Important question that the court had to answer was whether not the passage of the Aadhar act as a Money bill under Article 110 which has become a huge controversy during the passage of the act in the Lok Sabha. The court answered that the act fell within the purview of Article 110, considering Section 7 of the Act, which states that the Central Government may ask for authentication under Aadhar for the receipt of any subsidy. The petitioners accepted the contention that Section 7 fell within Article 110 but challenged the act on the ground that other sections namely Section 23(2)(h), 54(2)(m) and Section 57. The Court held that the purposes under Section 23(2)(h) and 54(2)(m) were incidental, and that the main purpose was that which was listed under Section 7, which the petitioners had also accepted. It had in any case struck down Section 57, and I personally think that was rather ill-advised. I will get to that in a bit. The Court had in its observations reiterated that it had the power to exercise judicial overview over speaker’s decisions when they are tainted by substantive or gross irregularity or unconstitutionality.
What was Section 57? Section 57 had crafted an exception within the act for the utilization of Aadhar numbers by corporates and private persons subject to the same restrictions placed on the Unique Identification Authority of India (UIDAI). This had developed a system of alternative cash payment and Identification verification, and now that has vanished.
In any case, I doubt that the court would have struck down the Aadhar Act and the programme, considering the fact that the Government had already collected the details of 99.6% of citizens. Would any Government willingly give up such a goldmine? Besides, with the time and investment that had already been taken in making this programme work would all have gone down the drain. These pressure undoubtedly weighed on the court.
Justice Chadnrachud’s dissent is quite remarkable, in all honesty. He, in paragraph 718 of his opinion, mentions “Structural due process” under Article 14 and 21 were not served by the Act. In the succeding paragraph, he states what “structural due process” is:
“Structural due process imposes requirements on public institutions and projects at the macro level. Structural due process requires that the delivery of social welfare benefits must be effective and timely. Those who are eligible for the benefits must not face exclusion. Procedures for the disbursal of benefits must not be oppressive. They must be capable of compliance both by those who disburse and by those who receive the benefits. Deployment of technology must factor in the available of technological resources in every part of the coverage area and the prevailing levels of literacy and awareness. Above all, the design of the project will be compliant with structural due process only if it is responsive to deficiencies, accountable to the beneficiaries and places the burden of ensuring that the benefits reach the marginalised on the state and its agencies.”
It is no doubt a landmark dissent, but I doubt that it would ever reach the legendary status that Justice HR Khanna’s dissent in the ADM Jabalpur case, however. The context and history of both the cases are in no way similar.
What can be done at this point is to make the best of a bad situation – the state already has the data that it can possibly have. Now, we need to make sure there are enough checks and balances to ensure that the data is not misused. To eternal vigilance!
Special Thanks to Akbar Zaheer.