Aadhar, Waiver of Fundamental Rights, and the Doctrine of Unconstitutional Conditions

(Edit: This essay is about whether Aadhaar can be linked to a governmental benefit scheme, and justified on the ground that beneficiaries make a free choice to give up their right to privacy in order to access benefits. The argument does not apply to cases where an individual chooses to opt for a voluntary Aadhaar scheme, where equally efficacious alternatives exist to avail of the same benefits. The validity of such a situation would depend upon whether fundamental rights may be waived in any circumstances, and that is dependent on a different set of arguments.)

(Edit 2: It was pointed out to me in the comments section that the irrevocability of parting with your biometric information makes this a more or less permanent waiver of fundamental rights. This point rather complicates the government’s argument of the voluntary nature of the “choice” in question. For instance, the reason why voluntary enslavement and voluntary servitude are prohibited is because the exercise of a one-time choice in a manner that no further choice in the matter is possible is not in consonance with our ideas about autonomy (which is something that human beings must be in a position to exercise at all times).

From reports of today’s Supreme Court proceedings in the Aadhaar review petitions, it appears that counsel invoked the doctrine of waiver: it was argued that citizens were entitled to waive their fundamental right to privacy (assuming that privacy is a fundamental right) in return for the governmental benefits that the possession of an Aadhaar card confers. The implications of the argument are significant, because it would allow the government to make Aadhaar not just optional, but mandatory as well: the government could argue that under a mandatory Aadhaar regime, citizens still have the option of protecting their privacy by foregoing Aadhaar (and its accompanying benefits), or taking Aadhaar, and waiving their right to privacy. In other words, citizens can choose to waive their right if they want access to certain benefits.

Framing the question as being one of waiver, however, misstates the real issue. The real issue is not whether, in the abstract, citizens can waive their fundamental rights if they so choose. It is whether the government can impose waiver of fundamental rights as a condition for accessing certain benefits. With respect to Aadhaar, the stakes are even higher, because the debate has been framed around the needs of poorer citizens to access government benefits. For many of these citizens, the choice between accessing benefits and losing privacy is a false choice, because it requires them to choose between a privilege that is essential for their livelihood, and a fundamental right.

In a recent, previous post, I had discussed the doctrine of unconstitutional conditions in relation to the denial of tax benefits to a film on homosexuality. I will not repeat the argument here, but only reproduce the relevant paragraph from the concurring opinion of Justices Chandrachud and Mathew in Ahmedabad St Xavier’s College vs State of Gujarat:

The doctrine of “unconstitutional condition” means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right. This doctrine takes for granted that ‘the petitioner has no right to be a policeman’ but it emphasizes the right he is conceded to possess by reason of an explicit provision of the Constitution, namely, his right “to talk politics”. The major requirement of the doctrine is that the person complaining of the condition must demonstrate that it is unreasonable in the special sense that it takes away or abridges the exercise of a right protected by an explicit provision of the Constitution… though the state may have privileges within its control which it may withhold, it cannot use I a grant of those privileges to secure a valid consent to acts which, if imposed upon the grantee in invitum would be beyond its constitutional power.”

Soon after, the judges explained the purpose of the doctrine of unconstitutional conditions further, by referencing the reasoning of Justice Sutherland at the US Supreme Court, in strikingly relevant terms:

“If this could be done, constitutional guarantees, so carefully safeguarded against direct assault, are open to destruction by the indirect, but no less effective, process of requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion. In reality, the carrier is given no choice, except a choice between the rock and the whirlpool–an option to forego a privilege which may be vital to his livelihood or submit to a requirement which may constitute an intolerable burden.”

And:

“This is much the same as what Das, C.J. said in In re: The Kerala Education Bill: No educational institutions can in actual practice be carried on without aid from the State and if they will not get it unless they surrender their rights, they will, by compulsion of financial necessities, be compelled to give up their rights under Article 30(1)“.

This last bit is particularly important, because the Aadhaar debate is framed around the access of poorer citizens to government benefits. For these citizens, those benefits are financial necessities. In Re Kerala Education Bill and Ahmedabad St Xavier’s College make it clear that by putting citizens in a position where they have to make a choice between a compelling financial necessity and the waiver of fundamental rights, the government is effectively giving them no choice at all, and is restricting their fundamental rights indirectly, by providing an illusion of choice and waiver. This logic applies squarely to the argument that privacy rights may be waived in order to access benefits linked to Aadhaar.

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12 Comments

Filed under Constitutional interpretation, Non-Disclosure, Privacy, Unconstitutional Conditions

12 responses to “Aadhar, Waiver of Fundamental Rights, and the Doctrine of Unconstitutional Conditions

  1. Amit Gupta

    Hello Gautam.. Well explained controversy around AHDAAR In this You have mentioned that “The major requirement of the doctrine is that the person complaining of the condition must demonstrate that it is unreasonable in the special sense that it takes away or abridges the exercise of a right protected by an “explicit” provision of the Constitution” if we say only explicit provison is protected by invoking doctrine of unconstitutional condition, then right to privacy may not be protected as it is not explicit under the constitution. I have this doubt in my mind. Is my doubt is valid or it is just a unnecessary doubt. Could you help me to understand this.

    • Hi Amit,

      Thanks for your comment. That’s a valid point, and I think that the use of the word “explicit” in the quotation is a little unfortunate. But I think that we needn’t set too much store by the word explicit, or limit it to rights that are specifically provided for by the constitutional text. If we agree that the right to privacy is a fundamental right, on a structural and holisitc reading of Articles 19 and 21, then the absence of a specific textual provision should not make a difference to the enquiry.

  2. Yoda

    UOI seems to argue that citizens can access welfare benefits only if they surrender their privacy. So where is the “choice”?

    (Whether privacy is a right, a protected right, etc is another matter).

    The nature of Biometric data is such that once inappropriately alienated, is permanently and irrevocably alienated. It is a one-way bridge, and thus a very serious matter.

    And on top of that there are no remedies for inappropriate alienation of private data as the authorities are not liable even if they fail to protect the data.

    The combination of the two makes it a dangerous mix.

  3. Also, the question of waiver of fundamental rights and public policy. SC in Basheshar Nath and Behram stated (majority opinion) non-distinction between fundamental rights for the benefit of the individual and the public (unlike in USA).

    • Yes, that’s true. I don’t think we even need to go that far, however. Waiver implies the existence of genuine free choice, which in turn implies the existence of at least two substitutable alternatives. If Aadhar is linked to a benefit, or is a substantially easier way of obtaining a benefit than other, privacy – protecting methods, then choice is not really free, and the question of the legality of waiver doesn’t even arise.

  4. Dr. V. Visvanathan

    Mr. Bhatia,
    I am not a lawyer so this question may be somewhat simplistic. When we apply for and get a passport, we have to part with pretty much the same personal information (including biometrics) as for the aadhaar card. What is the legal basis for the government to collect this information to issue a passport? Thanks!

  5. Dear Mr. Viswanathan,

    Sorry, I’ll have to plead ignorance at this stage. My guess would be that the authorisation is located in a government notification under the Act, probably issued recently. But it would take a lawyer specialising in the area to unearth it, I think.

    • Dr. V. Visvanathan

      Dear Mr. Bhatia,
      Thank you for your response. I will continue to look for information on both the authorization and “protection” of biometrics collected for passport purposes.
      The following report is interesting in that it provides information on how 15 different countries address the privacy concerns that arise when biometrics are collected as part of the passport application process:
      http://www.loc.gov/law/help/biometric-data-retention/

      Thanks again!

  6. Pingback: The Constitutional Challenge to S. 139AA of the IT Act (Aadhaar/PAN): Petitioners’ Arguments | Indian Constitutional Law and Philosophy

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