Proportionality Test for Aadhaar: The Supreme Court’s two approaches

In today’s judgment on Aadhaar, the Supreme Court used the Doctrine of Proportionality as the touchstone to determine the validity of the Act and scheme.

So, what does this doctrine entail?

It postulates that the nature and extent of the State’s interference with the exercise of a right must be proportionate to the goal it seeks to achieve.

In the context of today’s judgment, this essentially means the balancing of the purported benefits of Aadhaar and the potential threat it carries to the fundamental right to privacy. This formed the core question with respect to the validity of Aadhaar in the constitutional scheme.

A number of Supreme Court judgments have enumerated the ingredients that need to be fulfilled for a law to pass the proportionality test.

In Modern Dental College & Research Centre v. State of Madhya Pradesh & Ors, a five-judge Bench of the Supreme Court listed four components to be looked at in order to determine proportionality. These were based on the observations of former Chief Justice of the Supreme Court of Israel, Aharon Barak.

The same was agreed to in essence by a nine-judge Bench of the Supreme Court in Justice KS Puttaswamy v. Union of India, in which the Court upheld privacy as a fundamental right. In the judgment authored by Justice Sanjay Kishan Kaul, proportionality can be ascertained on the basis of the following:

 (a) the action must be sanctioned by law;

(b) the proposed action must be necessary in a democratic society for a legitimate aim; 

(c) the extent of such interference must be proportionate to the need for such interference;

(d) There must be procedural guarantees against abuse of such interference

Justice AK Sikri, in the majority judgment, considers the above for determining whether Aadhaar passes the proportionality test, albeit with a more nuanced approach.

He has also considered the approach suggested by Prof David Bilchitz of the Faculty of Law at Johannesburg University.

“Bilchitz proposes the following inquiry. First, a range of possible alternatives to the measure employed by the Government must be identified. Secondly, the effectiveness of these measures must be determined individually; the test here is not whether each respective measure realises the governmental objective to the same extent, but rather whether it realises it in a ‘real and substantial manner’. Thirdly, the impact of the respective measures on the right at stake must be determined. Finally, an overall judgment must be made as to whether in light of the findings of the previous steps, there exists an alternative which is preferable.”

Considering all of the above, Justice Sikri laid down a four-fold test to determine proportionality:

(a) A measure restricting a right must have a legitimate goal (legitimate goal stage).

(b) It must be a suitable means of furthering this goal (suitability or rationale connection stage).

(c) There must not be any less restrictive but equally effective alternative (necessity stage).

(d) The measure must not have a disproportionate impact on the right holder (balancing stage).

Now, let us look at how Sikri J has applied the above to the Aadhaar scheme.

For the first point (a), Sikri J listed out a number of Supreme Court judgments that have called for more transparency and efficiency of welfare schemes like the Public Distribution System. He notes,

“It is, thus, of some significance to remark that it is this Court which has been repeatedly insisting that benefits to reach the most deserving and should not get frittered mid-way. We are of the opinion that purpose of Aadhaar Act, as captured in the Statement of Objects and Reasons and sought to be implemented by Section 7 of the Aadhaar Act, is to achieve the stated objectives. This Court is convinced by its conscience that the Act is aimed at a proper purpose, which is of sufficient importance.”

As regards point (b), Sikri J held,

“We are also of the opinion that the measures which are enumerated and been taken as per the provisions of Section 7 read with Section 5 of the Aadhaar Act are rationally connected with the fulfillment of the objectives contained in the Aadhaar Act”

Coming to point (c), which requires the finding of a less restrictive but equally effective alternative, Sikri J holds,

“No doubt, there are many other modes by which a person can be identified. However, certain categories of persons, particularly those living in abject poverty and those who are illiterate will not be in a position to get other modes of identity like Pan Card, Passport etc…

…The manner in which malpractices have been committed in the past leaves us to hold that apart from the system of unique identity in Aadhaar and authentication of the real beneficiaries, there is no alternative measure with lesser degree of limitation which can achieve the same purpose.”

Point (d) requires arguably the most important analysis, that is the balancing of the Right to Privacy and the right of citizens to avail of benefits they are entitled to. After a long discussion on the balancing of rights, and considering the state of public welfare schemes before the advent of Aadhaar, Justice Sikri finds that the Aadhaar Act has struck a fair balance between the right of privacy of the individual with right to life of the same individual as a beneficiary.

On the issue of exclusion of people who are entitled to benefits due to technological glitches in the Aadhaar system, Justice Sikri questioned the wisdom of doing away with the scheme on a possibility of exclusion of some of the seekers of these welfare schemes.

To put it in his own words, “It will amount to throwing the baby out of hot water along with the water”.

Thus, different aspects of the Aadhaar scheme were measured against the proportionality test, with the Court striking down some provisions, and determining what services required linkage with Aadhaar.

A Different View

Justice DY Chandrachud, in his dissenting judgment, came to an altogether different conclusion with respect to the proportionality test. To determine the same, he used the four-fold test laid down in Puttaswamy.

As regards the legitimacy of the State’s interference with the Right to Privacy, Chandrachud J held,

“…by collecting identity information, the Aadhaar program treats every citizen as a potential criminal without even requiring the State to draw a reasonable belief that a citizen might be perpetrating a crime or an identity fraud. When the State is not required to have a reasonable belief and judicial determination to this effect, a program like Aadhaar, which infringes on the justifiable expectations of privacy of citizens flowing from the Constitution, is completely disproportionate to the objective sought to be achieved by the State.”

On the subject of a less restrictive but equally effective alternative, he held,

“The object of the state is to ensure that the benefits which it offers are being availed of by genuine students who are entitled to them. This legitimate aim can be fulfilled by adopting less intrusive measures as opposed to the mandatory enforcement of the Aadhaar scheme as the sole repository of identification. The state has failed to demonstrate that a less intrusive measure other than biometric authentication will not subserve its purposes.”

Needless to say, he was of the opinion that the Aadhaar scheme does indeed have a disproportionate impact on the right holder [point (d), as per Sikri J’s tests for proportionality. He also held that the existence of a legitimate aim is insufficient to uphold the validity of the law, which must also meet the other parameters of proportionality spelt out in Puttaswamy. To put it in his words,

“Constitutional guarantees cannot be subject to the vicissitudes of technology.”