Brazen disregard of our interim orders: Highlights from dissenting opinion of DY Chandrachud J. in Aadhaar

“The mere existence of a legitimate state aim will not justify the means which are adopted. Ends do not justify means, at least as a matter of constitutional principle.“.Whereas this observation appears towards the end of his judgment, it underpins the tenor of Justice DY Chandrachud’s dissenting opinion in the Aadhaar case..Justice Chandrachud stands out as the lone dissenting judge to conclude that the Aadhaar Act, the Rules and Regulations framed under it, and the framework prior to the enactment of the Act are unconstitutional..Pertinent observations leading up to this conclusion have been highlighted below..Passage of Aadhaar Act in the garb of a Money Bill a fraud upon the Constitution.This could be viewed as the central objection made by Justice Chandrachud in striking down the entire project as unconstitutional. A Money Bill, he emphasised, is so defined only if it deals with subjects falling under the scope of Article 110 of the Constitution, such as taxation and matters involving the use of funds from the Consolidated Fund of India..However, the Aadhaar Act encompassed much more than mere use of such funds. Contrary to how it has been projected by the government, Justice Chandrachud found that the Act primarily involved the creation of a national identity for multiple purposes..“The Aadhaar platform is not a social welfare benefit in itself. Essentially, what it seeks to achieve is to provide a unique identity to every resident.“.This, in turn, would also involve aspects such as authentication of information, obligations on requesting entities, consent, creation of a statutory authority (UIDAI), security, confidentiality, storage and disclosure of information as well as offences and penalties. Therefore, it could not be termed a Money Bill..“In its primary focus and initiatives, the [Aadhaar] law traverses beyond the territory reserved by Article 110 for a Money Bill.“.In this backdrop, he was unequivocal in criticizing the Government for having excluded the Rajya Sabha, whose role he emphasised was part of the Basic Structure of the Constitution. He found that such action amounted to a fraud upon the Constitution..“The Lok Sabha cannot introduce and pass a legislative measure in the garb of a Money Bill… Superseding the authority of the Rajya Sabha is in conflict with the constitutional scheme and the legitimacy of democratic institutions. It constitutes a fraud on the Constitution….… The ruling party in power may not command a majority in the Rajya Sabha. But the legislative role of that legislative body cannot be obviated by legislating a Bill which is not a Money Bill as a Money Bill. That would constitute a subterfuge, something which a constitutional court cannot countenance ….… Differences with another constitutional institution cannot be resolved by the simple expedient of ignoring it. It may be politically expedient to do so. But it is constitutionally impermissible. This debasement of a democratic institution cannot be allowed to pass. Institutions are crucial to democracy. Debasing them can only cause a peril to democratic structures.“.Potential Misuse of Aadhaar Data raises Privacy concerns.Serious apprehensions were raised given the haste to introduce an identification system which involves the use of sensitive information such as biometric data, in absence of adequate safeguards..A cautionary note has been sounded against underestimating the impact of using biometrics to build a centrally administered identification system..“Biometrically enhanced identity information, combined with demographic data such as address, age and gender, among other data, when used in increasingly large, automated systems creates profound changes in societies, particularly in regard to data protection, privacy, and security.”.While this is the case, Justice Chandrachud echoes concerns raised by various petitioners that the provisions of the Aadhaar Act do not inspire much confidence when it comes to limiting the amount of data collected or the use to which it is put, which in turn ushers in privacy concerns..As noted in the judgment,.“The threat to privacy arises not from the positive identification that biometrics provide, but the ability of third parties to access this in an identifiable form and link it to other information, resulting in secondary use of that information without the consent of the data subject. This erodes the personal control of an individual over the uses of his or her information. The unauthorised secondary use of biometric data is perhaps the greatest risk that biometric technology poses to informational privacy.”.Chandrachud J. found that the Aadhaar project gives ample scope for the potential misuse of this data to profile individuals as well..“… Thus, linking Aadhaar with different databases carries the potential of being profiled into a system, which could be used for commercial purposes. It also carries the capability of influencing the behavioural patterns of individuals, by affecting their privacy and liberty. Profiling individuals could be used to create co-relations between human lives, which are generally unconnected traces of Aadhaar number are left in every facet of human life, it will lead to a loss of privacy.”.It was also noted that the linking of Aadhaar data also has the potential to allow outsiders to re-construct a person’s profile and infringe the person’s right to choose how to identify himself..“… the impact of technology is such that the scheme of Aadhaar can reduce different constitutional identities into a single identity of a 12-digit number and infringe the right of an individual to identify herself/himself with choice.”.To explain, Justice Chandrachud quotes the following example:.“For instance, when an individual from a particular caste engaged in manual scavenging is rescued and in order to take benefit of rehabilitation schemes, she/he has to link the Aadhaar number with the scheme, the effect is that a profile as that of a person engaged in manual scavenging is created in the scheme database. The stigma of being a manual scavenger gets permanently fixed to her/his identity. .What the Aadhaar Act seeks to exclude specifically is done in effect by the mandatory linking of Aadhaar numbers with different databases, under cover of the delivery of benefits and services.“.Exclusion of Beneficiaries and the Digital Divide.“It may be the fashion of the day to advance the cause of a digital nation. Technology is undoubtedly an enabler. It has become a universal unifier of our age. Yet, the interface between technology and basic human rights cannot be oblivious to social reality.“.This observation has been made in light of various recorded instances of Aadhaar authentication failures, which Chandrachud J. noted had caused severe disruptions across the country, particularly in rural India. In this backdrop, he expressed concern that the provisions of the Act were couched in such broad terms that the scheme could potentially cover every basic aspect of the lives of citizens..“Every conceivable facility can be brought under the rubric of Section 7. From delivery to deliverance, almost every aspect of the cycle of life would be governed by the logic of Aadhaar.“.However, given that there are glaring examples of exclusion due to technical errors in Aadhaar, Chandrachud J. opined,.“Our quest for technology should not be oblivious to the country’s real problems: social exclusion, impoverishment and marginalisation ….There exists a digital divide. To railroad those on one side of that divide unconcerned about social and technical constraints which operate in society is to defeat the purpose of social welfare … .… The Aadhaar project has failed to account for and remedy the flaws in its framework and design which lead to serious issues of exclusion. Dignity and rights of individuals cannot be based on algorithms or probabilities. Constitutional guarantees cannot be subject to the vicissitudes of technology.“.Absence of a Robust Data Protection Regime.Adding to these concerns was the absence of any autonomous authority to check on the potential misuse of such data..“Data protection requires a strong regulatory framework to protect the basic rights of individuals. The architecture of Aadhaar ought to have, but has failed to embody within the law the establishment of an independent monitoring authority (with a hierarchy of regulators), along with the broad principles for data protection.“.This, in turn, prompted the judge to add an additional ground to the Aadhaar scheme’s failure to pass the test of Constitutional validity. He held,.“In the absence of a regulatory framework which provides robust safeguards for data protection, the Aadhaar Act does not pass muster against a challenge on the ground of Article 14. The law fails to meet the norms expected of a data protection regime which safeguards the data of 1.2 billion Indians. The absence of a regulatory framework leaves the law vulnerable to challenge on the ground that it has failed to meet the requirements of fair institutional governance under the rule of law….… The absence of a regulatory framework renders the legislation largely ineffective in dealing with data violations. Data protection cannot be left to an unregulated market place. Nor can the law rest in the fond hope that organized structures within or outside government will be self-compliant. The Aadhaar Act has manifestly failed in its legislative design to establish and enforce an autonomous regulatory mechanism. Absent such a mechanism, the state has failed to fulfil the obligation cast upon it to protect the individual right to informational self-determination.“.Fallout of declaring the Aadhaar Project Unconstitutional.Given his conclusion that the Aadhaar project in its entirety is unconstitutional, he found that Section 139AA of the Income Tax Act, which calls for linking Aadhaar data with the Personal Account Number (PAN) was also liable to be struck down. This conclusion was based on the premise that,.“The validity of the legislation seeding Aadhaar to PAN is dependent upon and cannot be segregated from the validity of the parent Aadhaar legislation.“.The communication issued by the Department of Technology, requiring the linkage of Aadhaar with mobile phone numbers was struck down since it violated the principles of proportionality, as laid down in the Puttaswamy judgment. Therefore, Justice Chandrachud also directed the deletion of any Aadhaar data collected by Telephone Service Providers within two weeks..As for the destruction of Aadhaar data in general, Justice Chandrachud has held that the data should be preserved for a year longer, to accommodate the possibility of the introduction of a new law conforming to the principles laid down in his judgment. However,.“At the end of one year, if no fresh legislation has been enacted by the Union government in conformity with the principles which have been enunciated in this judgment, the data shall be destroyed.“.On the Central Government’s contempt of Court orders.Before parting with the case, Justice Chandrachud also made it a point to haul up the Central Government for having repeatedly issued orders pertaining to linking Aadhaar, despite interim Court orders directing restraint on the mandatory use of Aadhaar..“When the Aadhaar Act was notified on 25 March 2016, the interim directions issued by this court were in operation. Was it then open to government to launch upon a virtual spree of administrative notifications making Aadhaar a mandatory requirement of virtually every aspect of human existence from birth until death?“.Chandrachud J. emphasised that the Court’s orders cannot be so nullified and superseded by the Aadhaar Act. He observed,.“Judicial orders, be they interim or final, cannot simply be wished away. If governments or citizens were allowed to ignore judicially enforceable directions, that would negate the basis of the rule of law. Both propriety and constitutional duty required Union government to move this Court after the enactment of the Aadhaar Act for variation of the interim orders.”.Summing up his views on such defiance of court orders, Justice Chandrachud remarked,.“If governments were free to ignore judicial directions at will, could a different yardstick be applied to citizens? The obligation to comply with judicial orders is universal to our polity and admits of no exception. Confronted with a brazen disregard of our interim orders, I believe that we have no course open except to stand firm.”.Read the dissenting judgment of Justice DY Chandrachud below.