- Vol - L No. 34, August 22, 2015
The Supreme Court has failed to protect citizens from government illegality on Aadhaar.
The Supreme Court’s interim order of 11 August 2015 in Justice (Retd) K S Puttaswamy vs Union of India (Writ Petition (Civil) 494 of 2012), referring the question of the width of the right to privacy in India to a Constitution Bench and issuing directions on the “use” of the Unique Identification Number (“Aadhaar number”), is a travesty. Three years after the first legal challenges were filed against the Aadhaar number, we are no wiser as to the legality of a scheme which is not based on law made by Parliament and against which serious allegations of breach of privacy are being levelled.
A government agency acting in a legal vacuum is the antithesis of the rule of law. Citizens must know their legal rights and duties, the procedures to be followed, and the remedies they can avail of against any wrongful action of such agencies. In the context of the Unique Identification Authority of India (UIDAI), this most basic tenet of the rule of law has been abandoned by successive governments.
Five years after enrolments were begun by the UIDAI, there is still no legal framework on the basis of which the biometric data is being collected and Aadhaar numbers being issued. The National Identification Authority of India Bill, 2009 was shredded by the Parliamentary Standing Committee for, among other things, the glaring weaknesses in the framework to protect the privacy rights of individuals. It is unclear if any changes are being made to the bill subsequent to the Report of the Parliamentary Standing Committee but the UIDAI functions nonetheless. Whatever be the benefits of granting unique biometric identification (for government and citizens alike), they are being eroded by the manner in which it has been operationalised outside the purview of law.
This is where courts in a constitutional democracy such as India are supposed to step in. Constitutional courts are supposed to check unlawful action by the government, and the Supreme Court has, thus far, failed to do so.
The Supreme Court’s first significant order in this case, on 23 July 2013, was confusing and contradictory, leaving much scope for doubt as to whether an authority could make the Aadhaar number mandatory for availing a service or a benefit.
Although the stand of the central government and the UIDAI continues to be that obtaining an Aadhaar number is voluntary, there is a clear divergence between the stand taken in the Court and the actual demands by government agencies on the ground. For instance, the Aadhaar number was made mandatory by the Union Ministry of Minority Affairs for students from minority communities who wished to avail government scholarships. It was only a steep drop in the number of students availing the scholarships that prompted the ministry to make it voluntary.
The earlier interim order of the Supreme Court, it would seem, far from restraining the use of the Aadhaar number by the government has, in fact, come to be seen as a green signal for expanding its use. This forced the Court to reiterate its direction in an order on 25 March 2014 in a different case filed by the UIDAI against the direction of the Bombay High Court asking it to provide biometric details to the Central Bureau of Investigation in an ongoing case. That nothing much changed is evident from the interim order of 16 March 2015 where the Court again asked the central and state governments to “adhere” to its earlier orders.
The latest interim order of the Supreme Court is yet another attempt to ensure that the Aadhaar number is not made mandatory by stealth. However, it muddies the water by allowing the “use” of the Aadhaar number in the context of the public distribution system (presumably to prevent leakage) and for criminal investigations. It is also not clear what possible use the biometric information could be put to in investigating crimes since the UIDAI has itself repeatedly clarified that the technology does not permit it to be used for database-matching of fingerprints and biometric information. On the issue of the use of Aadhaar numbers for criminal investigation, the Court contradicts its own earlier order of 25 March 2015 but gives no reasons as to why it has changed its mind.
The biggest failing of the Court’s interim order however is its own unenforceability. The only recourse that a citizen has against a government agency violating the Supreme Court’s order is to approach the Supreme Court itself in Delhi with a contempt petition, and hope for relief. This is simply out of the question for all but a negligible proportion of the country’s population. The likely effect will be that the use of the Aadhaar number, uncontrolled by law and carried on with reckless disregard for privacy concerns, will be expanded slowly but surely in defiance of the Court’s order.
While the Supreme Court will eventually decide the constitutional scope of the right to privacy in India in this case, it is entirely possible that by then it will be presented with a fait accompli by the government—that the scheme has gone on for too long and is now too deeply embedded in the structure of governance that any rollback in the interests of legality, privacy or constitutionalism would be unwieldy and chaotic. If such a state of affairs comes to pass, the blame must rest on the shoulders of the Supreme Court for having failed to exercise its power to uphold the rule of law and having allowed its authority to be eroded with impunity.
