13057 - Separate freedoms - The Hindu

Separate freedoms

Suhrith Parthasarathy

March 21, 2018 00:02 IST

Why did the court extend the deadline on linking Aadhaar to various services, but refuse to grant one for welfare plans?

Last year, before a nine-judge bench of the Supreme Court in K.S. Puttaswamy v. Union of India, the Central government posited a frightening thesis. The Constitution, it argued, does not recognise a fundamental right to privacy. One of the main planks of this submission revolved around a notion that privacy was a purely elitist concern, that a liberty of this kind, whenever and wherever it can be promised, will always be overridden by the government’s duties in a welfare state. The court, however, decidedly thought otherwise. Indeed, its categorical rejection of the government’s arguments was a cause for much celebration. The court showed us, at least in theory, that it was willing to treat every citizen with equal dignity, care and respect, that the inviolability of rights was not conditional on a person’s position in society.

Protecting privacy

“The refrain that the poor need no civil and political rights and are concerned only with economic well-being has been utilised through history to wreak the most egregious violations of human rights,” wrote Justice D.Y. Chandrachud in his opinion on behalf of himself and three others. Privacy, he added, could never be a privilege doled out only to a select few. “Every individual in society irrespective of social class or economic status is entitled to the intimacy and autonomy which privacy protects… The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birth marks of individuals.” 

Justice R.F. Nariman, in his separate opinion, was equally dismissive of the government’s arguments. There can be no “antipathy whatsoever between the rich and the poor,” he wrote, on the existence of a fundamental right to privacy.

In its reach, however, the judgment in Puttaswamy went even further. Not only did the judges see a general guarantee of privacy as foundational, and as subject only to the limits on freedom expressly provided by the Constitution’s language, but, even more significantly, a clear majority on the bench also placed their faith in a system that saw fundamental rights as unassailable, in a system where an individual will not be waiving her liberties simply by accepting grants and benefits from the government. In other words, the court acknowledged that the state wasn’t doing anyone a favour by providing them benefits and subsidies — these were as much an entitlement that sprang from the Constitution as the other freedoms flowing from the document’s text.

Selective extension

Now, therefore, we must ask ourselves this: what brought about a volte-face in the Supreme Court’s thinking, in its interim order delivered on March 13, in the ongoing battle over the validity of the Aadhaar programme? Here, the court extended the government-mandated deadline on linking Aadhaar to different services, including one’s banking and mobile phone accounts, until it delivers a final judgment. But, markedly, it refused to grant a similar extension for notifications made under Section 7 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. These notifications make a person’s entitlement to a host of welfare schemes, including subsidy programmes, conditional on the individual possessing an Aadhaar number. Aren’t citizens enrolled to receive benefits from government entitled to the same freedoms as others?

Originally, the state told us that by providing every Indian a unique identity number, by collecting biometric information from us, including our fingerprints and iris scans, the government can ensure an equitable distribution of benefits to the poor. But there were many problems with this vision. For one, it lacked any legislative backing, and was, therefore, clearly introduced without due process. What’s more, the state displayed a complete lack of care or concern for a person’s right to privacy, in commencing a project which it couldn’t have even been sure would satisfy its purported objectives. After all, the government had barely conducted any disinterested study before the project was piloted to examine its costs and benefits. As a result, several petitions were filed in the Supreme Court, questioning the project’s constitutional validity.

However, when these cases came up for hearing before a three-judge bench, in 2015, the government argued that the Aadhaar programme couldn’t be questioned, because the Constitution, in any event, didn’t guarantee any right to privacy. Faced with this astonishing claim, the court, later that year, referred the cases to a larger bench, to answer what ought to really have been a rudimentary question: does the Constitution recognise a fundamental right to privacy? While making this reference, though, the court also delivered a brief interim order.

The production of an Aadhaar card, it wrote, cannot be made mandatory for obtaining any benefits otherwise due to a citizen. Additionally, Aadhaar could only be used for a specific list of purposes, such as the enforcement of schemes under the Public Distribution System. In October that year, a bench modified this order to include certain other schemes for which Aadhaar could be used, but, at the same time, was careful to clarify that the project was entirely voluntary and that no person could be compelled to enrol in the programme.

Clause on subsidy

In the meantime, in March 2016, even as these petitions were pending before the Supreme Court, the Union government introduced in the Lok Sabha a draft legislation, in the form of a money bill, with a view to legitimising the creation of the Unique Identification Authority of India (UIDAI), which runs the Aadhaar programme. This law, the Aadhaar Act of 2016, describes enrolment with the UIDAI as voluntary. But, in Section 7, it authorises both the Central and State governments to make Aadhaar mandatory for anyone wishing to receive a subsidy, benefit or service, for which expenses are borne from the Consolidated Fund of India. Although this clause, at the same time, demands that the government must accept alternate proofs of identity from persons without an Aadhaar number, since the law’s enactment the state has notified more than 130 schemes in which beneficiaries of different welfare measures have been mandated to enrol with the UIDAI. These programmes include schemes that affect access to the public distribution system, to mid-day meals for children, to pensions for the elderly, to public health care, to food subsidies under the National Food Security Act, to maternity benefits, and to an array of other such necessities.

Simultaneously, the government has also made a series of declarations under various different laws, directing individuals to secure an Aadhaar card and to link this number with their income tax PAN, bank accounts, financial services such as mutual and provident funds, and insurance policies, among others. Now, although the deadline for seeding Aadhaar with these services expires on March 31, much like the deadline for linking Aadhaar for the purposes of the schemes notified under Section 7, the benefit of the Supreme Court’s interim order, delivered last week, will enure only to the former.

The consequences of this classification are enormous. It creates a fait accompli on Aadhaar for economically and socially deprived persons alone. Every day stories abound on denial to individuals of one benefit or another — access to rations, to food, to health care and to pensions — because of a failure in biometric authentication. Given the substantial concerns raised over the efficacy of Aadhaar-based biometric authentication, why, we might be tempted to ask, did the court separately rank notifications under Section 7?

Does the court’s order tell us that rights are not sacrosanct; that individuals seeking benefits from the state exist purely at the government’s mercy? Is the court reneging on the glorious promises it made last year? Regrettably, the order offers no explanation. Indeed, there can be no rationale for this classification. The court has every power to now amend its interim order. Unless it does so, the social contract, undergirding the Constitution, faces the grave threat of being reduced to rubble.

Suhrith Parthasarathy is an advocate practising at the Madras High Court

11542 - Legislation and legality - The Hindu

Legislation and legality

Suhrith Parthasarathy

JUNE 20, 2017 00:02 IST

In the Aadhaar-PAN case, the Supreme Court has effectively held that policy goals override rights

At one point in its recently delivered judgment, in Binoy Viswam v. Union of India, the Supreme Court described the dispute over Section 139AA of the Income Tax Act, 1961, as falling within a category of what “Ronald Dworkin calls ‘hard cases’”. The petitioners before the court had argued that the provision, which makes it obligatory on individuals filing income tax returns to link their permanent account numbers (PAN) to their Aadhaar, was unconstitutional as it, among other things, infringed a number of fundamental rights.

The court, however, in declaring this case as “hard”, was effectively telling us that its abilities were somehow hamstrung by the nature of the dispute, that despite the strength of the petitioners’ arguments there existed principled reasons why it might be difficult for it to intervene. Unfortunately, this assertion flies in the face of American philosopher-jurist Dworkin’s ideas which the court sought to invoke.

While at first blush, a quibble over this categorisation might seem a largely frivolous concern, seeing as it is made on apparently pedantic grounds, in reality the court’s mistake here goes to the root of why it got its decision in Binoy Viswam as it did, and why it so often fails to uphold critical civil liberties when faced with acts of governmental coercion.

Dworkin’s ‘hard cases’

For Dworkin, “hard cases” are those disputes where “no settled rule dictates a decision either way”, and where, therefore, “it might seem that a proper decision could be generated by either policy or principle.” In other words, they encompass cases where there exists a particularly knotty controversy over deciding what the law really is, where an application of differing value judgments could plausibly result in contradictory identifications of the law.

To illuminate this point, in his book, Law’s Empire, Dworkin cites McLoughlin v. O’Brian, a 1983 House of Lords case involving an automobile accident. Here, Ms. McLoughlin’s husband and four children were injured after their car was hit by a lorry. She only heard about the accident a few hours later, and when she drove to the hospital where the rest of her family was admitted, she was told that one child had died and the others were seriously injured. Ms. McLoughlin, as a result of these revelations, suffered a nervous shock, and she later sued the lorry driver whose negligence had caused the accident.

This case, in Dworkin’s belief, was “hard” because there was no existing precedent where a person was awarded damages despite being absent from the scene of the accident. To decide such a case, Dworkin said, a judge must view “law as integrity”, that “propositions of law are true if they are derived from principles of justice, fairness and procedural due process, which provide the best constructive interpretation of the community’s legal practice.” In other words, a judge deciding such a dispute must test her interpretation by asking whether her decision could form part of a coherent theory that justifies the entire network of political structure and legal doctrine of their community.

The issues in Binoy Viswam, however, called for no such Herculean interpretive exercise. Nor did it require the court to indulge in any lawmaking. The facts were simple enough, and the court, notwithstanding its assertions to the contrary, did not have to decide on the “wisdom of the Legislature in enacting a particular law”, but merely on its constitutionality. To do this, it only had to apply existing precedent to rule on whether Section 139AA violated one or the other of the fundamental rights guaranteed in Part III of the Constitution. Regrettably, the court’s answers to these basic questions are patently misjudged.

Despite keeping arguments over privacy outside the scope of their submissions — given that a larger bench of the Supreme Court has been asked to rule on whether India’s citizens possess a fundamental right to privacy at all — there were a number of acute arguments that were made to show the court that Section 139AA violated the rights to equality, to practise any profession, and to personal liberty of the petitioners. However, each of these arguments was dismissed almost on the singular ground that the state has a legitimate interest in making classifications to effectuate its policy decisions. This might seem like an unexceptionable proposition. But in effectively holding that the government has the power to undermine rights to achieve policy goals (an ironic conclusion given that Dworkin, who the court relies on, championed rights as trumps) the court has accepted, sans reasons, sweeping conclusions drawn by the state.

Casting away concerns

For instance, the court altogether rejected the contention that the Income Tax Act cannot make Aadhaar compulsory when the core legislation, the Aadhaar (Targeted Delivery of Financial & Other Subsidies, Benefits & Services) Act, 2016, makes enrolment in the scheme voluntary. The court did this by accepting as gospel truth the state’s arguments that the linking of Aadhaar and PAN can help eradicate the ills of tax evasion caused by a proliferation of black money. Several significant concerns highlighted by the petitioners, which showed that both biometric details and iris scans can be forged, were also swept aside without so much as a mention. As a result, the state’s argument was allowed to stand, in spite of the fact that almost no rational nexus has been shown to exist between the government’s purported aim of eradicating black money and the classification that Section 139AA makes in compelling individuals alone to secure a unique identity.

The court showed a similar disdain in dismissing arguments made on the arbitrariness that is inherent in Section 139AA. The reasons supplied by the petitioners on why the linking of Aadhaar and PAN is capricious were wholly ignored. For example, the judgment failed to heed to the fact that the consequences of an invalidation of a person’s PAN might result in a virtual “civil death”, as the senior counsel Arvind P. Datar, who represented one of the petitioners, described the provision. Instead the court invoked the proposition that a legislation cannot be struck down on grounds of arbitrariness alone. To do this, it relied on the verdict from 2015 in Rajbala v. State of Haryana, ignoring, in the process, a mountain of earlier precedent where arbitrary state action, including by way of legislation, has been held as antithetical to the guarantee of equality.

Now, it’s plain to see that even if Parliament represents the interests of the people, any legislation made by it is a product of the proclivities of the government in power. To check whether a legislation is arbitrary or not is not to question the wisdom of the legislature, but rather to examine whether the classifications that a law makes are rational and to scrutinise whether Parliament has exercised judgment by responding to reasoned analysis as opposed to the whims of motivated interest groups. Here, the court finds no need for such an inquiry because a legislation, it holds, cannot be subject to judicial review for being purely arbitrary.

Arguments on how Section 139AA violates a person’s right to practise any profession or carry on any trade under Article 19(1)(g) also met with a similar fate. And this cloud has only the thinnest of silver linings — when a Constitution Bench eventually decides on whether Aadhaar as a collective policy infringes the rights to privacy and bodily integrity (if indeed such liberties are deemed as fundamental guarantees), there remains the possibility that Section 139AA may be rendered void.

But, for now, we’re left with a deeply undesirable and unsatisfactory outcome: all those who already possess an Aadhaar card must integrate it with their PAN, regardless of whether they ever imagined having to submit to such a burden at the time of securing the identity, and where any person who files an income tax return after July 1 must have, at the least, applied for a unique identity. As to how this distinction is constitutionally sustainable, the court tells us little. Ultimately, this wasn’t a “hard case” to decide. But by getting its conclusions as it has, the judgment’s consequences are certainly likely to prove difficult, imposing, as they do, an unreasonable burden on our essential civil liberties.

Suhrith Parthasarathy is an advocate practising at the Madras High Court

11019 - Clarity and facts on the ground - The Hindu

Clarity and facts on the ground

Suhrith Parthasarathy

APRIL 10, 2017 00:02 IST

UPDATED: APRIL 10, 2017 10:09 IS

Why it’s essential that the Supreme Court speedily hears the Aadhaar petitions

There are several conflicting accounts of precisely what transpired when senior advocate Shyam Divan made a request late in March for an early hearing of a batch of petitions that question the validity of the unique identification scheme, implemented through the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 — or the Aadhaar Act. The next morning’s newspapers each produced their own versions: in the narration of some, the court made it clear that Aadhaar ought not to be made mandatory for welfare schemes; others reported that the court had also expressly clarified that Aadhaar could, in fact, be imposed in relation to certain state directives.

“Let us take Income Tax returns. Is this a benefit? No, we don’t think so,” the Chief Justice of India, J.S. Khehar, sitting along with Justices D.Y. Chandrachud and S.K. Kaul, said, according to The Indian Express. “You can ask someone to have a bank account on the basis of Aadhaar. That is not a benefit. But if you want to make it mandatory for a poor person in a village to get his meagre pension, that could mean extending a benefit… For benefits, it (Aadhaar) cannot be pressed… for non-benefits, it can be done.”

These statements, regardless of their exact import, understandably raise legitimate concerns. After all, they were made by the CJI, barely a day after the Lok Sabha had passed amendments to the Finance Bill making Aadhaar mandatory for securing a permanent account number (PAN), and consequently for filing income tax returns. But in attempting to comprehend the significance of these remarks, we must be careful not to ascribe any excessive value to them; indeed, there’s practically no utility to be gained in trying to put different news reports together to try to ascertain what the CJI may have really meant. For these statements were just oral ripostes, which don’t bear the force of a judicial order.

Point of no return

What was more telling, however — and ultimately more damaging — about this entire episode was the result: the denial of Mr. Divan’s plea for a speedy inquiry into the validity of Aadhaar. It is now entirely likely that by the time the court gets around to hearing the challenge, the government will render Aadhaar a fait accompli, with its destiny, in this case, having been sealed by successive CJIs who have failed to so much as constitute a bench to hear the petitions. This lapse also highlights a deeper malaise in our judicial structure: where one person, the CJI, as the sole master of the Supreme Court’s roster, decides the composition of benches, and, as a result, wields enormous administrative power over which cases get heard and which cases get placed on a seemingly never-ending back burner.

For close to 19 months, the petitions challenging Aadhaar have been stuck in an administrative logjam. In August 2015, at the bidding of the Union of India, a three-judge bench headed by Justice J. Chelameswar ruled that there was substantial confusion on whether the Constitution guaranteed citizens a right to privacy, and therefore that the case had to be placed before a larger bench, of an appropriate strength to be determined by the CJI. The bench also added (something which the court reiterated again in October that year) that it would be desirable to have the case finally heard at the earliest, having regard to its importance. But, all these months later, with Aadhaar becoming more and more entrenched in the Government’s grand plan, we are no closer to having a bench constituted to decide the legal challenge to the scheme.

Consider the consequences. In a few months’ time, millions more would have enrolled with the Unique Identification Authority of India, submitting their biometric data, with a view to staying clear of the long arm of the country’s punitive laws. Given that there is still no authoritative ruling from the Supreme Court on whether the state’s present acts in extending the use of Aadhaar constitutes a contempt of the court’s previously granted interim orders, it is also quite plausible that the government is far from finished. As a result, when the court finally gets around to listing the petitions before a freshly minted seven-judge Constitution Bench — let’s say sometime in the year 2021 — the damage wrought by Aadhaar will be incapable of being undone. By then, India would have taken an irredeemable step towards becoming a surveillance state, and the question of whether we actually have a constitutionally protected right to privacy would be all but moot.

This failure of the Supreme Court, needless to say, wouldn’t be unique to the Aadhaar challenge. There were a number of false dawns before the court had, on December 16, referred the challenge to the demonetisation policy to a Constitution Bench. Now, several weeks later, given that the court had explicitly refused to grant a stay of the policy, even if a bench is indeed constituted to hear the petitions, it’s unlikely to matter much: for the state has already thrust the policy on us, and its impact is now permanent.

Today, were the court to hear the petitions challenging Aadhaar, it’s no doubt conceivable that, on an examination of the merits, it might conclude that India’s citizens possess no fundamental right to privacy, or that Aadhaar does not infringe on this right in a constitutionally unsustainable manner. Whatever our respective predilections might tell us about such a view, at least we might be able to take heart from the fact that the court would have performed its basic function under India’s democratic structure: of testing legislative and executive acts against the guarantees of the Constitution. What it’s presently doing, though, is indefensible. It is not only rendering academic these significant constitutional questions but, as the lawyer Gautam Bhatia has pointed out, it’s virtually deciding in favour of the government without actually delivering a judgment.

Perils of delays

Delays in constitutional judgment, as K.M. Munshi, a member of the Constituent Assembly, had pointed out in a draft note in 1947, can have deep and perilous consequences on fundamental rights. “It is of the highest importance that the question whether a law is valid or not must be decided at the earliest moment,” he wrote. “Any uncertainty about its validity will lead to great hardships. The object of the fundamental law will be frustrated if people have to serve sentences, pay fines or deny themselves the privileges given by the Constitution for a long time under an invalid law.”

Most constitutional courts around the world are acutely aware of these dangers. Even recently, there are notable examples from other jurisdictions where courts have fast-tracked certain cases with a view to ensuring that the questions they raise aren’t consigned to theory. The U.K. Supreme Court heard in December 2016 and ruled in January this year that British Prime Minister Theresa May must get Parliament’s approval before formally triggering Britain’s exit from the European Union. Also, last month, a South African High Court ruled that the decision by President Jacob Zuma to withdraw from the International Criminal Court was not only premature but was also procedurally flawed. In both these cases, a failure to decide expeditiously would have had irreversible consequences. It was to negate such an impact that the courts made suitable arrangements for a quick hearing. Comparing India’s Supreme Court to other constitutional courts around the world can be a difficult and even tedious exercise. There’s no question that our judiciary is fraught with an overflowing docket. But can there really be any excuse for a failure to rule punctually on live conflicts between the state and the citizenry?

The summer proceedings

In response, it may well be pointed out that the Chief Justice has established three Constitution Benches that are scheduled to function during the court’s summer vacation. But this programming is a red herring, unless cases are prioritised for hearing in a transparent and logical manner. Thus far, the issues that appear to be accorded precedence over Aadhaar include the validity of triple talaq and polygamy as practised among Muslims, a cause taken up by the court virtually on its own motion, and the legality of WhatsApp’s privacy policy, which the court will begin hearing on April 18. This isn’t to suggest that these cases aren’t important. But given that they don’t encompass disputes that pit the individual directly against the state, the consequences that they are likely to have, from a standpoint of public and constitutional law, aren’t as instantly significant as the issues that the Aadhaar challenge presents. 

That these cases are being prioritised over Aadhaar is therefore curious, at its best, and is, at its worst, seriously damaging to any remaining notions that we might have of the Supreme Court representing a bulwark of freedom and democracy.

Suhrith Parthasarathy is an advocate practising at the Madras High Court