The Aadhaar Judgment and the Constitution – II: On proportionality (Guest Post)

(This is the second post of our three-part series on the Aadhaar Majority’s legal reasoning. This is a guest post by Mariyam Kamil.)

The five-judge bench decision of the Indian Supreme Court on the constitutional validity of the Aadhaar scheme was handed down on 26 September 2018. The judgment was split 4:1. Justice Sikri, who wrote the majority judgment on behalf of himself, Chief Justice Misra and Justice Khanwilkar upheld the scheme. Justice Bhushan in a separate opinion concurred and Justice Chandrachud dissented.

This post will focus on one theme from the judgment: the standard of judicial review against which privacy infractions are tested. This issue was at the core of the privacy challenge. It also turned out to be the most critical factor in the Court’s analysis that ultimately upheld the Aadhaar scheme. For now, I will focus on the majority judgment.

The post will proceed as follows. In Part A, I will consider the three ‘standards of review’ that have been discussed in the Indian privacy context. Part B will outline the majority’s adoption of the ‘proportionality’ test. Part C will examine the Court’s application of this test to the Aadhaar card scheme.

Part A: The Three Tests

 Prior to the nine-judge bench decision in Puttaswamy, most Indian privacy cases appeared to oscillate between two standards of judicial review: the traditional reasonableness analysis and the stricter standard of ‘compelling state interest’.

After Puttaswamy, three things became clear as far as standard of review for privacy infractions was concerned. First, the minimum threshold that the State had to satisfy in order to legitimately curtail the right to privacy was the standard of ‘just, fair and reasonable’. Second, penumbral notions of privacy must satisfy the standard of review applicable to the respective constitutional provisions under which the infraction is claimed. Third, there was some support for the view that ‘proportionality’ would be the standard of review applicable to privacy cases going forward.

It is crucial to understand how these three standards differ from each other. What is the conceptual distinction between ‘reasonableness review’, ‘compelling state interest’ and ‘proportionality’? Do they overlap with each other? Are they only distinct in degree or do they also differ in content?

Most authors agree that ‘compelling state interest’ and ‘proportionality’ are more stringent standards of review than traditional ‘reasonableness’ (see, for instance, Dr Tarunabh Khaitan’s work). The Indian Supreme Court has also affirmed this view in the past (see for example, Ashok Kumar Thakur).

Moreover, an exposition of these standards also reveals a variation in scrutiny. The starting point for all the three tests is that the infringing act must have the authority of law. If the impugned State action does not have the authority of ‘law’, the Court will look no further.

If this hurdle is overcome, we then get to the next enquiries. The ‘just, fair and reasonable’ test requires the Court to answer two questions: 1) Is the State pursuing a legitimate state aim or objective? I will call this the ‘objective review’. If the answer to this question is in the affirmative, the Court will ask a second question. 2) Is the State using reasonable means to achieve this State objective? Put differently, is there a rational nexus between the means used and the objective sought to be achieved. I will call this ‘means review’.

The ‘compelling state interest’ test is one part of the two-pronged strict scrutiny standard. As part of strict scrutiny, the Court answers the following two questions: 1) Is the State pursuing a ‘compelling’ State aim? 2) Is the State pursuing the least intrusive means of achieving its compelling objective?

Strict scrutiny is a more rigorous standard of review. However, the difference between reasonableness review and strict scrutiny is mainly one of intensity. The degree of intensity of the ‘objective review’ and ‘means review’ changes, but the enquiries remain largely similar. So, in strict scrutiny, within the ‘objective review’ we ask: is the State pursuing a compelling State interest rather than a legitimate one. Under ‘means review’, we question whether this is the least intrusive manner of achieving the State’s compelling objective rather than a reasonable means of achieving that aim. This limb of strict scrutiny is referred to as ‘narrow-tailoring’.

‘Proportionality’, on the other hand, is qualitatively different from the other two. It varies not only in intensity but also in content. Proportionality consists of four enquiries. First, is the State pursuing a legitimate purpose? Second, is there a rational nexus between that purpose and the infringing act? Third, can another, less intrusive, measure be used to achieve the State’s purpose? Finally, is the infringement of the right too great in comparison to the public purpose?

The first two limbs of proportionality align closely with the ‘objective review’ and ‘means review’ under the traditional reasonableness analysis. The third limb resembles the narrow-tailoring limb of strict scrutiny. However, it is the fourth limb of proportionality that is unique. The fourth limb requires the Court to make a value judgment. It requires the Court to balance the importance of the State interest on the one hand, with the importance of the right or the extent of its intrusion, on the other. For instance, the Court may ask, is the public benefit in pursuing the State interest greater than the extent of infringement of the right? Therefore, a State interest could be legitimate (first limb), rationally connected to its objective (second limb) and narrowly tailored (third limb), yet it could still fail the balancing component under the fourth limb of proportionality.

Many criticise the proportionality standard for this very reason (see, for example, Francisco Urbina’s book). To them, proportionality allows the Court to review legislative choices. However, it is this fourth balancing limb of proportionality which is characteristic of the test. It is what makes the test, on occasion, even more stringent than strict scrutiny.

Part B: The Majority’s Understanding of ‘Proportionality’

 The majority speech in the Aadhaar judgment adopts ‘proportionality’ as the standard of judicial review for testing privacy infractions. Interestingly, the majority adopts a slightly modified version of this test.

The majority begins their consideration of proportionality with a doctrinal and academic analysis leading them to note that ‘some differences about the approach on the application of proportionality doctrine’ exist. For instance, the Judges point out the differences between tests adopted by the German Constitutional Court and the Canadian Supreme Court. They explain the German test as follows:

According to this test, a measure restricting a right must, first, serve a legitimate goal (legitimate goal stage); it must, secondly, be a suitable means of furthering this goal (suitability or rational connection stage); thirdly, there must not be any less restrictive but equally effective alternative (necessity stage); and fourthly, the measure must not have a disproportionate impact on the right-holder (balancing stage). [120]

This appears to be the conventional approach. The majority speech contrasts the German test with the Canadian Oakes test:

In contrast, Canadian Supreme Court… has held that the objective must be ‘of sufficient importance to warrant overriding a constitutionally protected right or freedom’; there must be a rational connection between measure and objective; the means must ‘impair “as little as possible” the right or freedom in question’; and finally, ‘there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of “sufficient importance”’. [122]

 As the Court points out, there are two main differences between the German approach and the Canadian one. First, the Canadian test requires the State aim to be of ‘sufficient importance’ rather than just legitimate. Second, the German test insists that there must exist no other ‘less restrictive but equally effective alternative’. In contrast, the Canadian formulation only requires that the State impair the right ‘as little as possible’.

The majority speech then turns to the task of deciding the best formulation between these variations of the test for India. It points to two main criticisms levelled against the German test. First, all the moral work in the German test is done at the balancing stage, rendering the first three limbs of the test predominantly useless. Second, “the balancing act at the final stage is often carried out in an impressionistic fashion which seems to be largely unguided by principle and thus opens the door for subjective, arbitrary and unpredictable judgments encroaching on what ought to be the proper domain of the democratic legislature.” [123]

These criticisms are not new to proportionality review. Interestingly, the Court turns to Professor David Bilchitz’s work to answer one of these criticisms. According to Professor Bilchitz, the first concern i.e. that the balancing stage of proportionality doing all the work rendering other limbs useless, can be addressed by focusing on the necessity stage (third limb) instead of the balancing stage (fourth limb). He does this by supplementing the necessity stage in the following way:

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; and this judgment will go beyond the strict means ends assessment favoured by… the German version of the proportionality test; it will also require a form of balancing to be carried out at the necessity stage. [123] (emphasis added)

Two points merit attention at this stage. Foremost, is the majority’s uncritical adoption of Professor Bilchitz’s proposition. It has been argued elsewhere on this blog that this choice is questionable. In addition, some aspects of the Bilchitz thesis are themselves open to objection. For example, according to Professor Bilchitz (and the majority) the third limb of proportionality now requires a comparison of different measures all of which achieve the State objective ‘fairly and substantially’. Having identified a range of measures that can ‘fairly and substantially’ achieve the State aim, why is it that, among those objectives, the State is not required to adopt the least intrusive option? Notably, the majority does not require the State to do so. Instead, they say that there is a balancing exercise to be undertaken at this stage of the analysis. However, the majority does not clarify what the content of this balancing is. What are the values that are balanced at this stage?

As for the second criticism levied against the German test—that the fourth balancing stage is carried out in an impressionistic fashion, unguided by principle—the majority holds that it can be overcome by using established ‘bright-line rules’:

Insofar as second problem in German test is concerned, it can be taken care of by avoiding ‘ad-hoc balancing’ and instead proceeding on some ‘bright-line rules’ i.e. by doing the act of balancing on the basis of some established rule or by creating a sound rule. [124] (emphasis added)

This, again, is a controversial claim. What are these bright-line rules? The majority offers no guidance on this. The fourth limb requires the Court to weigh against each other the importance of the public purpose pursued by the State against the intrusion it causes into individual rights. It is difficult to understand how bright line rules can offer an answer to this value-laden process. Indeed, one of the main criticisms of this limb of proportionality has been that it requires weighing up against each other of incommensurable values.

 In sum, the Court adopts the German proportionality test but tempers down intensity of the third limb of narrow-tailoring with Professor Bilchitz’s analysis and qualifies the fourth balancing limb with its own caveats. This the Court refers to as its nuanced proportionality test which is the amalgam between the German and Canadian tests, and this is the test that the Court formulates and adopts for its privacy and Aadhaar analysis.

The next section will attempt to understand the Court’s application of its own test to the facts before it.

Part C: The Majority’s Application of Proportionality

 The majority has propounded a version of proportionality which requires the Court to consider the following enquiries:

  1. Is the State pursuing a legitimate aim?
    1. The State aim must be legitimate, not necessarily compelling.
  1. Are the means used to achieving this aim reasonable or suitable?
  1. Is there a less intrusive way to achieve the State objective? This enquiry includes:
    1. Identifying alternatives to the measure adopted by the State.
    2. Asking how effective each of these alternative measures are. Do they achieve the State objective in a ‘real and substantial manner’?
    3. What is the impact of each of these measures on the infringed right?
    4. The Court will undertake a ‘balancing exercise’ at this stage.
  1. Balancing the State objective on the one hand with the importance of the right and the extent of intrusion on the right on the other.
    1. This balancing is best done by following bright-line rules which are either established or need to be created.

Let us now examine the Court’s application of its own test, particularly with reference to the highly contested third and fourth limbs of proportionality.

On the first limb of proportionality i.e. whether the State is pursuing a legitimate objective, the Court observes that it is.

Section 7 of the Aadhaar Act is aimed at offering subsidies, benefits or services to the marginalised section of the society for whom such welfare schemes have been formulated… [263]

[T]he aim of the Act is to ensure that these benefits actually reach the populace for whom they are meant. This is naturally a legitimate State aim. [266]

The majority speech then proceeds to analyse the Aadhaar scheme based on the second limb of proportionality. The question here is: is there a rational nexus between the means used to achieve the State objective? Here, again, the Court reasons that there is a rational connection between the means i.e. the Aadhaar enrolment scheme and its authentication, and the State objective i.e. providing welfare benefits:

At this point of time, we are discussing the issue as to whether the limitation on the rights of the individuals is rationally connected to the fulfillment of the purpose contained in the Aadhaar Act… Section 7, which provides for necessity of authentication for receipt of certain subsidies, benefits and services has a definite purpose and this authentication is to achieve the objectives for which Aadhaar Act is enacted, namely, to ensure that such subsidies, benefits and services reach only the intended beneficiaries. [278]

These two limbs of proportionality are largely uncontroversial. It is the Court’s application of the third and fourth limbs that creates difficulty.

On the third limb of proportionality—the necessity limb—although the majority endorses Professor Bilchitz’s thesis, as discussed above, it completely fails to engage with it in its own analysis. All that the majority had to say on the third limb is this:

Insofar as third component is concerned, most of it stands answered while in the discussion that has ensued in respect of component No. 1 and 2. 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. In fact, on repeated query by this Court, even the petitioners could not suggest any such method. [280]

This reasoning is, with respect, unfortunate. There is no consideration at all of alternatives to the Aadhaar card scheme. The Court shirks this enquiry on the basis that the petitioners have suggested no such alternates. It has been pointed out elsewhere on this blog that this is factually incorrect. There is no discussion of the effectiveness of these alternate measures either. Further, there is also no assessment of the impact of Aadhaar and other alternate measures on the right to privacy. Importantly, and as a logical corollary, no balancing exercise is in fact carried out at this stage.

The Court had to clarify, through its own four-part enquiry, how it concluded that Aadhaar was the only scheme with no available alternatives to achieve the State purpose. This analysis was certainly not done in the first and second components of the test discussed above. Significantly, it was important for the Court to engage with this analysis because the strongest challenge to the Aadhaar scheme would have come from the third and fourth limbs of proportionality as these are more rigorous in nature than the first two prongs.

The Court’s examination of the fourth limb of proportionality is also intriguing. Interestingly, at this stage the majority introduces a two-part enquiry into its balancing exercise:

  • Whether, ‘legitimate state interest’ ensures ‘reasonable tailoring’?… Here the Act is to be tested on the ground that whether it is found on a balancing test that the social or public interest and the reasonableness of the restrictions outweigh the particular aspect of privacy…
  • There needs to be balancing of two competing fundamental rights, right to privacy on the one hand and right to food, shelter and employment on the other hand. [285]

The first enquiry, although it is not articulated clearly, is the conventional proportionality analysis. It requires the Court to balance against each other the importance of the state objective and the extent of intrusion into the right. The second enquiry, in contrast, balances two fundamental rights against each another. I will consider the majority’s approach to each of these enquiries in turn.

On the first enquiry, the Court instead of balancing the importance of the State purpose against the extent of intrusion into privacy, engages in a detailed evaluation of the ‘reasonable expectation of privacy’ test. Borrowing heavily from the English Court of Appeal’s decision in R Wood v Commissioner, the Court says,

Therefore, when a claim of privacy seeks inclusion in Article 21 of the Constitution of India, the Court needs to apply the reasonable expectation of privacy test. It should, inter alia, see:

  • What is the context in which a privacy claim is set up?
  • Does the claim relate to private or family life, or a confidential relationship?
  • Is the claim a serious one or is it trivial?
  • Is the disclosure likely to result in any serious or significant injury and the nature and extent of disclosure?
  • Is disclosure relates to personal and sensitive information of an identified person?
  • Does disclosure relate to information already disclosed publicly? If so, its implication? [292]

It is imperative to understand what the ‘reasonable expectation of privacy’ really is. It is a test propounded in a 1967 decision of the United States Supreme Court: Katz v United States. This test was generally applied to American Fourth Amendment unreasonable search and seizure claims. The test has a subjective component and an objective component. The subjective component asks whether the person whose right is violated actually expected privacy in such a situation? If the answer is in the affirmative, the Court then asks whether, objectively, the society would find the expectation of privacy unreasonable? The Court’s use of the ‘reasonable expectation of privacy’ test is open to two main objections.

First, as pointed out elsewhere on this blog, the reasonable expectation of privacy test has been discredited in the land of its origin. Further, its application to Indian privacy cases is also disputed. Nariman J, for one, expressly rejected it in Puttaswamy.

Second, the purpose of the reasonable expectation of privacy test is to determine whether the infringement occurred in a sphere where the petitioner has a valid claim to privacy. Consequently, it relates to a stage anterior to proportionality review. If the petitioner had no reasonable expectation of privacy, then there is no breach of the right to privacy to begin with. There is simply no need to engage in the exercise of balancing competing interests.

Curiously, the Court had adopted this understanding of the ‘reasonable expectation of privacy’ test in an earlier part of its reasoning. It said:

Before we proceed to analyse the respective submissions, it has also to be kept in mind that all matters pertaining to an individual do not qualify as being an inherent part of right to privacy. Only those matters over which there would be a reasonable expectation of privacy are protected by Article 21. [260]

Thus, if the petitioner has no reasonable expectation of privacy, she is outside the protective scope of Article 21. It is puzzling, therefore, that while undertaking a balancing exercise under the fourth limb of proportionality, the Court decided to use the ‘reasonable expectation of privacy’ test. With respect, this is conceptually indefensible.

On the second aspect of the balancing enquiry, the Court attempted to balance the right to privacy on the one hand, and the rights to food, livelihood and social welfare benefits on the other, to conclude that the invasion on the right to privacy is minimal. The majority reasoned in the following terms:

Let us advert to the second facet of balancing, namely, balancing of two fundamental rights. As already pointed out above, the Aadhaar Act truly seeks to secure to the poor and deprived persons an opportunity to live their life and exercise their liberty. By ensuring targeted delivery through digital identification, it not only provides them a nationally recognized identity but also attempts to ensure the delivery of benefits, service and subsidies… [298]

In the aforesaid backdrop, this Court is called upon to find out whether Aadhaar Act strikes a fair balance between the two rights… To reiterate some of the important features, it is to be borne in mind that the State is using Aadhaar as an enabler for providing deserving section of the society their right to food, right to livelihood, right to receive pension and other social assistance benefits like scholarships etc. thereby bringing their right to life to fruition. This necessity of Aadhaar has arisen in order to ensure that such benefits are given to only genuine beneficiaries. The Act aims at efficient, transparent and targeted delivery of subsidies, benefits and services. In the process, it wants to achieve the objective of checking the corrupt practices at various levels of distribution system which deprive genuine persons from receiving these benefits… As against the above larger public interest, the invasion into the privacy rights of these beneficiaries is minimal. [307, 308]

Conclusion

To conclude, there are three main takeaways from the judgment on the standard of review applicable to privacy claims.

First, the standard of judicial review is now, unambiguously, proportionality. Second, the majority creates its own version of proportionality for the purposes of Indian privacy jurisprudence. Strikingly, this includes a balancing exercise under the third, necessity limb. Yet, it remains unclear what the content of this commensuration exercise is. Finally, the Court’s application of the proportionality standard to the Aadhaar card scheme is defective in at least two main respects: it fails to engage meaningfully with the less intrusive alternatives and it, wrongly in my view, conflates the fourth limb of proportionality review with the ‘reasonable expectation of privacy’ test.

The Nagaraj/Creamy Layer Judgment and its Discontents

On September 26th, a Constitution Bench of the Supreme Court delivered judgment in Jarnail Singh v Lacchmi Narain GuptaThe Court was essentially called upon to decide whether the correctness of the previous five-judge bench judgment in M. Nagaraj v Union of India ought to be referred to a seven-judge bench for reconsideration.

Nagaraj was a reservations case (examining a challenge to Articles 16(4A) and (4B) of the Constitution. In particular, two of its findings were under challenge: firstNagaraj had held that as a precursor to granting reservations (including to Scheduled Castes and Scheduled Tribes), the State would have to collect “quantifiable data” demonstrating their backwardness. And secondlyNagaraj had held that the “creamy layer” concept – where certain members of a group were deemed to belong to the “creamy layer” and therefore not entitled to reservations – was also applicable to Scheduled Castes and Scheduled Tribes. The Attorney-General for India argued that both these findings were incorrect, as they were contrary to the holding of the nine-judge bench in Indira Sawhney v Union of India.

Quantifiable Data 

On the first issue, the Constitution Bench – in a unanimous judgment authored by Nariman – held that Nagaraj stood directly contrary to Indra Sawhney, and was therefore incorrect:

Insofar as the State having to show quantifiable data as far as backwardness of the class is concerned, we are afraid that we must reject Shri Shanti Bhushan’s argument. The reference to ―class‖ is to the Scheduled Castes and the Scheduled Tribes, and their inadequacy of representation in public employment. It is clear, therefore, that Nagaraj (supra) has, in unmistakable terms, stated that the State has to collect quantifiable data showing backwardness of the Scheduled Castes and the Scheduled Tribes. We are afraid that this portion of the judgment is directly contrary to the nine-Judge Bench in Indra Sawhney (1) (supra). (paragraph 14)

While this is no doubt correct on law (and indeed, on logic – the Presidential list under Articles 341 and 342 containing the list of Scheduled Castes and Scheduled Tribes is already based on an assessment of marginalisation and vulnerability), it does raise a question of judicial propriety. Can a five-judge bench hold that a coordinate bench wrongly interpreted the law, and is therefore incorrect? Does not propriety require that the subsequent bench refer the case to a seven-judge bench, which can then overrule the (allegedly) incorrect judgment? Not that this is not even a case where it was argued that Nagaraj was per incuriam: rather, what was advanced was the far more modest claim that Nagaraj got Indira Sawhney wrong. But even if Nagaraj got Indira Sawhney hopelessly, irredeemably wrong, that was not for the Constitution Bench in Jarnail Singh to decide.

Creamy Layer

Nariman J. then went on to hold that even though Indira Sawhney had not expressly chosen to apply the creamy layer principle to Scheduled Castes and Scheduled Tribes, it had always been clear that the principle was a facet of constitutional equality. Nariman J. relied upon N.M. Thomas for this principle, relying upon some observations in Krishna Iyer J.’s concurring opinion, to note that:

The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were. This being the case, it is clear that when a Court applies the creamy layer principle to Scheduled Castes and Scheduled Tribes, it does not in any manner tinker with the Presidential List under Articles 341 or 342 of the Constitution of India. The caste or group or sub-group named in the said List continues exactly as before. It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation. Even these persons who are contained within the group or sub-group in the Presidential Lists continue to be within those Lists. It is only when it comes to the application of the reservation principle under Articles 14 and 16 that the creamy layer within that sub-group is not given the benefit of such reservation. (paragaraph 15)

Importantly, Nariman J then went on to hold that courts could themselves “exclude” the creamy layer from reservations (paragraph 16).

But for a conclusion of this magnitude, Nariman J.’s reasoning is disappointingly sketchy. There are at least two good reasons why the creamy layer doctrine should not be applied to Scheduled Castes and Scheduled Tribes, neither of which are addressed or acknowledged by the judgment. First, the very concept of a “creamy layer” presupposes that some members of a subordinated group have attained a level of privilege, that they no longer share the characteristics of subordination, and therefore, are no longer a part of the “group” in that limited sense. Now, when the subordination is economic or political, it makes sense to assume that it is at least possible for some people, or groups of people, to “escape” that subordination, so to say. However, that is a far more dubious claim when the subordination is social in character, and is founded on discrimination of a certain kind, where group identity itself is the locus of disadvantage. We don’t have to go too far afield to understand this – there are more than enough examples of Dalits who have broken free of economic marginalisation or penury, but continue to be subjected to the most shocking forms of social discrimination. And indeed, this has historically borne out: right from the early-20th century, the first lists of “Depressed Classes”, drawn up by British commissions, focused on social stigma as the basis of classification (for a detailed discussion, see Marc Galanter’s Competing Inequalities). Recall Ambedkar’s own words about how caste society was based on an “ascending scale of hatred and a downward scale of contempt.” Does the concept of a “creamy layer” make any sense here? Well, if it does, than it requires substantially more detailed justification than the Court provides.

And secondly, even if we are to accept that “creamy layer” makes conceptual sense in the case of SCs and STs, there nonetheless remain justifications for the existing reservation model that the Court does not touch upon. It is argued, for example, that even if the benefits of reservation are “captured” by the elite within a group, even that constitutes positively towards greater social mobility (of the group) in the long term apart from ancillary benefits of greater political salience. I am not saying that these arguments are correct, or persuasive; however, it does behoove the Court to address them if it is going to introduce the creamy layer concept into these two categories.

Conclusion

Jarnail Singh suffers from two problems. On one point, it overrules a coordinate bench without even a finding of per incuriam. And on the second point, it puts its seal on a significant doctrinal shift in reservations jurisprudence, but does not back it up with the depth of analysis that it demands. I suspect, however, that this is not the last that we have heard on the issue – especially from the government’s side!

The Aadhaar Judgment and Reality – II: On Fallibility

(This is the second post in a four part series by Anand Venkat examining the factual claims underlying the Majority judgments in Aadhaar.)

How do we know that a certain technology works as claimed? The steps to ascertain that it does indeed work, as expected, are fairly standard, and are neutral to the technology deployed, as described below:

  1. First a trial or a laboratory exercise is conducted, under pristine or controlled conditions, to see how the technology performs.
  2. It is a given at this stage that this is the best possible condition, which is not representative of the real world, because no small scale experiment can capture the complex reality of the real world in full.
  3. The results are then published, with precise descriptions of the laboratory conditions including an assessment of the assumptions.
  4. Then, extrapolations are  made, based on the conditions necessary to extend it to the real world. These are usually accompanied by error bands or confidence intervals.
  5. The technology is then rolled out slowly, and the predictions are checked against real world measurements. The applicability is  continuously determined
  6. The side effects of deviation from laboratory conditions are then addressed, either through improvements, or, if the deviations are relatively small, then manually.

The description above is essential for the reader to understand a key issue that the Majority in the Aadhaar judgement, dodged — all technology solutions are fallible, but what matters is the deviation from expectations, to determine applicability.

Biometric Fallibility

The Majority points out one key study in its judgement (Page 16), that was submitted by the UIDAI itself, titled “Role of Biometric Technology in Aadhaar Authentication”. The study points out on page 24, the following conclusion:

Finally 1.87% of residents participating in the study were found to have fingerprint Quality not sufficient for fingerprint authentication.

They were not included in the further authentication tests.

In essence, the headline accuracy figures of 99.3%, that the Majority quoted in its judgement, came after excluding those from the study that UIDAI conducted, for whom biometrics does not work at all.

This specific facet was argued by the petitioners in depth, which the Majority chose to ignore. Instead, the judgement specifically used a headline figure of 99.76% (Paragraph 314, Page 384), but this is one that even the UIDAI did not claim, in its own study.

The Authority has claimed that biometric accuracy is 99.76%. It was, however, submitted that where more than 110 crores of persons have enrolled themselves, even 0.232% failure would be a phenomenal figure,  totalling 27.60 lakh people.

It might be possible to argue that this is nitpicking on numbers, but let us deconstruct the basic technology issues here, from elementary probability the kind that is taught in 10th standard schooling. For biometric authentication to work reliably, the following parameters are required.

  1. Fingerprint quality of the resident itself.
  2. Fingerprints/IRIS scans captured at a good quality during enrolment.
  3. Working scanners during authentication.
  4. Internet Connectivity
  5. Various back end servers, configured by the service providers (PDS, MNREGA) that work reliably.

Every one of the above are fallible, and can fail. So, across a wide population, the chances of failure are a sum of (1-5). The UIDAI has already admitted that (1) above is 1.87% at controlled conditions. So it is only natural by the iron law of probability addition, again, one that is taught in primary schools, service denials are embedded in the design and architecture of the project.

The numerous affidavits filed by petitioners are testimonials to the mathematical certainty that form the basis of the challenge. But the way in which the majority dealt with mathematical certainties backed by data is stunning. It pronounced an undying faith on technological improvements, backed without evidence or data.

We understand and appreciate that execution of the Aadhaar scheme, which has otherwise a laudable objective, is a ‘work in progress’. There have been substantial improvements in the system over a period of time from the date of its launch.It was stated by the learned Attorney General as well as Mr. Rakesh Dwivedi, at the Bar, that whenever difficulties in implementation are brought to the notice of the respondents, remedial measures are taken with promptness. Cases of denial of services are specifically looked into which is very much needed in a welfare State and there can be a genuine hope that with the fine tuning of technology, i.e. the mode of advancement at rapid pace, such problems and concerns shall also be completely taken care of.

It is important to understand the implication of the above paragraph. When asked to make difficult decisions on the fallibility of a technological solution, the Majority first refused to engage with the unyielding iron laws of mathematics. It then made up a factually inaccurate claim that there have been improvements since the date of  launch of the project, and then finally hoped that the technology will further improve over time, to address this issue, when the UIDAI’s CEO’s presentation itself showed authentication failures on government schemes increasing over time:

PPT
From the Power-Point Presentation submitted by the UIDAI Chairperson in Court

By doing so, the Majority avoided facing questions of fallibility, that were raised strenuously by the petitioners, through hope (and perhaps a prayer).

Witch Doctors and Bleeding

A very significant contribution of modern medical trials is the idea of Randomized Controlled Trial (RCT). A medical intervention that is expected to cure an ailing patient is put through a rigorous evaluation, to ascertain the effectiveness of the medical intervention, and also to identify unwanted side effects. This is important, to distinguish various competing interventions that attempt to cure the patient with the same problem.

While RCT is complex, it is also considered as the gold standard for evidence based policy making. For instance, corruption and leakage in welfare delivery can be thought of as a disease, one that plagues the ailing nation, and various interventions, including Aadhaar, can be thought of as state interventions that aim to cure the problem.

But how many of these interventions are effective? For instance, medieval witch doctors also had a noble intent, the curing of diseases through constant bleeding of the patient. While no one can question the state’s noble intent to remove corruption, the question of effectiveness of various measures still remains.

The state’s preferred method of showcasing the effectiveness of an intervention is “Savings to the Exchequer”. It cited fantastic figures, that always keep increasing over time, but which were refuted in depth by the petitioners, as noted by the Majority, in Para 316, Page 385. The Majority recorded the Petitioners’ following submissions: 

First, it [i.e., the State] has failed to discharge its burden of showing that the purported leakages were exclusively caused due to identity fraud, and that those leakages would not exist if  Aadhaar is implemented. The state has not given any empirical data. Leakages exist due to eligibility frauds, quantity frauds and identity frauds. Studies filed in Petitioner’s affidavits show that eligibility and quantity frauds are the substantial cause for leakages. Assuming that the Aadhaar Act prevents leakages, the biometric identification system can, at best, only cure leakages related to identity fraud. The government’s claims of savings inter alia of Rs. 14,000 crores in the PDS system, due to the deletion of 2.33 crore ration cards is incorrect, inflated, and based on wrong assumptions for the following reasons:

1. It admittedly does not have estimates of leakages in PDS, nor has any study been done to see if POS machines are effective in removing PDS irregularities;

2. It conflates issue of “bogus /ineligible ration cards” (eligibility fraud) with identity fraud

3. The figure of 2.33 crore includes West Bengal, where ration cards are issued to each person, as opposed to each household

4. A large number of these 2.33 crore cards were deleted even before Aadhaar-integration and seeding came into effect;

5. The savings figure includes even those eligible beneficiaries who have been removed from the list due to failure to link Aadhaar properly; and

6. It does not value the cost of loss of privacy. Most importantly, the basis for reaching such savings figure has not been disclosed.

Similarly, incorrect averments have been made in the context of LPG savings, using Aadhaar-enabled Direct Benefit Transfer (‘DBT’) scheme known as PAHAL.

How did the Majority deal with such detailed factual rebuttals? In Page 350, Paragraph 279, it points out that:

There have been cases of duplicate and bogus ration cards, BPL cards, LPG connections etc. Some persons with multiple identities getting those benefits manifold. Aadhaar scheme has been successful, to a great extent, in curbing the aforesaid malpractices.

 

That is about it. There is no engagement with facts, no weighing contradictory evidence, no engagement with methodology or the lack of it, behind the state’s assertions.

Conclusion

One of the stunning achievements of the human race, that distinguishes us from other organisms, is the fact that we can engage with the physical and material world through complex reasoning Technological progress emerged from such reasoning, and mathematical theory and laws form the bedrock of technology.

Methodological correctness, therefore, is also a side effect of technological progress. For instance, can one claim that one is a billionaire without any assets, jobs or wealth and only with a number written on a piece of paper?

A person who makes such a claim would be laughed out in seconds as delusional, yet the highest constitutional court, allowed the state to make the fantastic claim that Aadhaar helped in curbing malpractices, with no evidence, methodological backing or proof, and get away with it.

Worse still, though, it also endorsed it, and declared it as the truth.

By doing so, it relapsed to argumentum ad verecundiam, where statements made by authority figures, even if they are totally without basis, are held as the ultimate truth.

The Aadhaar case is fundamentally about the intersection of power, technology and freedom as noted by Chandrachud J. in his dissent. In understanding the interface between governance, technology and freedom, this case will set the course for the future.

A factual engagement with technology, mathematics, scientific approach and methodology was essential for the court to understand the issues involved. That it chose to depend on a ‘slideshow’ presentation and that too, only selectively (it ignored the increasing authentication failures in government schemes) to arrive at its conclusions, is disturbing, for more than one reason.

Part 3 of this series will highlight how it incidentally tripped up not only the petitioners, but also caused nightmares to the UIDAI and the state accidentally, because of its technological illiteracy.

The Sabarimala Judgment – III: Justice Chandrachud and Radical Equality

Justice Indu Malhotra’s dissenting opinion sets up a crucial constitutional question: how do you reconcile the Constitution’s commitment to pluralism – which entails respect for group autonomy – with the claims of equality and non-discrimination, addressed from within those groups? It is this question that is at the heart of Justice Chandrachud’s concurring opinion.

Chandrachud J. sets up the issue in the introductory part of his judgment, where he observes that the Indian Constitution is transformative in two distinct ways: first, in setting up the governing institutions of an independent republic, transitioning from colonial rule; but also, “placing those who were denuded of their human rights before the advent of the Constitution – whether in the veneer of caste, patriarchy or otherwise – … in control of their own destinies by the assurance of the equal protection of law” (paragraph 2). The reference to caste and patriarchy is important, because it acknowledges that discrimination is not limited to State action, or even to hostile individual action, but that it also flows from institutional design: caste and patriarchy are neither “State” nor an agglomeration of individual acts where you can attribute discriminatory agency to identifiable individuals. They are social institutions.

And because they are social institutions, their impact upon the lives of the people that they touch is not merely a private matter. In paragraph 5, therefore, Chandrachud J. observes:

Essentially, the significance of this case lies in the issues which it poses to the adjudicatory role of this Court in defining the boundaries of religion in a dialogue about our public spaces. (paragraph 5)

The use of the word “public spaces” is crucial, and especially when you juxtapose it with Malhotra J.’s dissenting opinion, which we discussed in the previous post. Recall that for Malhotra J., there was a distinction between a “social evil” like Sati – where a Court could potentially intervene – and a case like Sabarimala, where the challenge was based on irrationality or immorality. It is this public/private binary – social evil (public) and bare immorality (private) – that Chandrachud J. rejects, by framing the issue as about access to public spaces.

It is within this framework that Chandrachud J. begins his substantive analysis.

Essential Religious Practices 

After surveying the body of precedent concerning the ERP test – and also noting the shift from “essentially religious” to “essential religious”, that we have discussed on this blog – Chandrachud J.’s judgment has a section titled “The engagement of essential religious practices with constitutional values.” At the threshold, Chandrachud J. finds that the Respondents have failed to establish that the exclusion of women from Sabarimala is either an obligatory part of religion, or has been consistently practiced over the years. The evidence, at best, demonstrates the celibate nature of Lord Ayappa, but this in itself does not establish that exclusion of women is part of ERP (paragraph 51).

However, apart from the traditional and straightforward analysis of whether or not a religious claim amounts to an essential religious practice, Chandrachud J. also advances an important alternative argument: that “the test of essentiality is infused with … necessary limitations” (paragraph 50), limitations that are grounded in constitutional morality, and the constitutional values of dignity and freedom. So, at paragraph 55, Chandrachud J. notes:

The Respondents submitted that the deity at Sabarimala is in the form of a Naishtika Brahmacharya: Lord Ayyappa is celibate. It was submitted that since celibacy is the foremost requirement for all the followers, women between the ages of ten and fifty must not be allowed in Sabarimala. There is an assumption here, which cannot stand constitutional scrutiny. The assumption in such a claim is that a deviation from the celibacy and austerity observed by the followers would be caused by the presence of women. Such a claim cannot be sustained as a constitutionally sustainable argument. Its effect is to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which women are equally entitled. To suggest that women cannot keep the Vratham is to stigmatize them and stereotype them as being weak and lesser human beings. A constitutional court such as this one, must refuse to recognize such claims. (paragraph 55)

As a piece of discrimination law reasoning this is, of course, impeccable. But there is something more at work here, which I want to highlight. Chandrachud J.’s observation that the effect of the celibacy argument “is to impose the burden of a man’s celibacy on a woman” is the crucial link between the denial of the right to worship (which Malhotra J., in her dissent, regards as a private, internal matter to religion) and the public aspect of this case. What Chandrachud J. recognises is that the justification offered to exclude women is an integral part of a far broader discourse that is founded on the exclusion and subordination of women in social and community life. This becomes clear two paragraphs down, where he discusses the stigma around menstruation (another justification that was advanced by the Respondents), and observes:

The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order. (paragraph 57)

The phrase “patriarchal order” is an important one. It indicates that the exclusion of women from Sabarimala is not simply – as Malhotra J. would have it – a unique and particular feature of that specific religious community, and something that can be isolated from the broader world around it. Rather, the exclusion of women from Sabarimala on the grounds of celibacy and menstruation is one among countless ways in which patriarchy – as a social institution – works to keep women in a position of subordination.

Justice Malhotra and Justice Chandrachud, therefore, come at the issue from opposite angles. What Malhotra J. sees as a claim requiring that religion be subordinated to the diktats of morality, Chandrachud J. understands as challenge to one manifestation of patriarchal subordination itself. According to Chandrachud J., you cannot divide social life into different silos, and say that discrimination and subordination are fine as long as they stay within a defined silo. At least as far as religion and society are concerned, in the context of India, the silos are forever merged. As Alladi Krishnaswamy Iyer said in the Constitutional Drafting Committee, “there is no religious question that is not also a social question.”

It perhaps needs to be noted that history is on Justice Chandrachud’s side. In India, temple-entry movements have a long history, and have always been framed in the language of civil rights, and access to public spaces. This was especially true of the great caste-based temple-entry movements of the 1920s and 30s (which are discussed later in the judgment). This substantiates the argument that in India, the “thick” character of religious life implies that you cannot simply wall it off from the rest of social life. Consequently, discrimination within religion is hardly an isolated event, like – for example – the non-appointment of a woman to a clerical post in an American Church, which was upheld by that Supreme Court. Rather, at the heart of Chandrachud J.’s judgment is the understanding that discrimination within religion both reinforces and is reinforced by, discrimination in broader social life.

Untouchability 

This understanding is reinforced in what is undoubtedly the boldest and most radical part of Chandrachud J.’s judgment. An argument was made by the intervenors that the exclusion of women from Sabarimala amounts to “untouchability” within the meaning of Article 17. The Chief Justice and Nariman J. do not address this argument, and Malhotra J. rejects it on the ground that “untouchability” under the Indian Constitution is limited to caste-based untouchability.

Chandrachud J. disagrees. After a detailed survey of the Constituent Assembly Debates (which we have discussed previously on this blog, here), he correctly observes that there was no consensus in the Constituent Assembly over the precise scope and ambit of the phrase. But when you place the moment of constitutional framing within broader history, you have an answer:

The answers lie in the struggle for social emancipation and justice which was the defining symbol of the age, together with the movement for attaining political freedom but in a radical transformation of society as well. (paragraph 73)

And:

Reading Dr Ambedkar compels us to look at the other side of the independence movement. Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is the end product of both these struggles. It is the foundational document, which in text and spirit, aims at social transformation namely, the creation and preservation of an equal social order. The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence. (paragraph 74)

This reminiscent of Granville Austin’s famous line, that the fundamental rights chapter was framed amidst a history of fundamental wrongs. In these paragraphs, Justice Chandrachud argues that the meaning of fundamental rights ought be determined by asking the following question: what was the legacy of injustice that the Constitution sought to acknowledge, and then transform? That legacy was defined by social hierarchies and social subordination. At its most virulent form, this took the shape of caste untouchability. However, caste was not the only axis for exclusion from, and subordination within, the social order. There were others, prime among which was, of course, sex. Consequently, as Justice Chandrachud observes:

The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of historic horrors. It is an attempt to make reparations to those, whose identity was subjugated by society. (paragraph 75)

It is, of course, important not to overstate the case. Not every form of discrimination or prejudice can fall within Article 17. The framers did after all use the specific word “untouchability”, limiting the sweep of the Article only to the most horrific kind of discrimination. Chandrachud J. is aware of this, because he then goes on to justify why exclusion based on menstruation falls within Article 17:

The caste system represents a hierarchical order of purity and pollution enforced by social compulsion. Purity and pollution constitute the core of caste. (paragraph 76)

And of course, it is purity and pollution that are at the heart of excluding menstruating women – not just from temples but, as regularly happens in our country – from all forms of human contact during the menstrual period. Chandrachud J.’s important insight, therefore, is this: the social exclusion of a set of people (who are in any event historically subjugated), grounded in ideas about purity and pollution, amounts to a manifestation of the kind of “untouchability” that the Constitution seeks to prescribe. This does not mean, of course, that it is not caste-based untouchability that is at the heart of Article 17; nor does it seek to dilute the severity of that institution, or the Constitution’s commitment to wipe it out. What it does acknowledge, however, is that the same logic that is at the base of caste-based untouchability, also takes other forms and other manifestations. These manifestations may not be at the core of Article 17, but they do deserve its protection:

Article 17 is a powerful guarantee against exclusion. As an expression of the anti-exclusion principle, it cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution. (paragraph 75)

And therefore:

The caste system has been powered by specific forms of subjugation of women. The notion of “purity and pollution” stigmatizes the menstruation of women in Indian society. In the ancient religious texts and customs, menstruating women have been considered as polluting the surroundings. Irrespective of the status of a woman, menstruation has been equated with impurity, and the idea of impurity is then used to justify their exclusion from key social activities. (paragraph 81) (internal footnotes omitted)

In an important way, this links back to the previous argument about essential religious practices. It is obviously absurd to compare the exclusion of women (and mostly upper-caste women at that) from a temple with “untouchability” as we understand it. But that is something that Chandrachud J. very consciously does not do. What he does do is to link the underlying basis of the exclusion in Sabarimala with something that goes far beyond, and permeates very layer of society: this is why he specifies that the idea of impurity justifies exclusion from “key social activities.” In other words, it is not about exclusion from worship, but – yet again – how that exclusion both reinforces and is reinforced by an existing and overarching set of discriminatory institutions and systems.

Exist, Pursued by a Bear: Narasu Appa Mali 

There is one more important thing that Chandrachud J. does in his concurrence. Noting that the exclusion of women has also been justified on the basis of “custom”, he examines – and overrules – the Narasu Appa Mali judgment on the specific point that customs are not subject to fundamental rights.

In terms of outcomes, this is not new: in Madhu Kishwar v State of Bihar, the Supreme Court has already held that customs are subject to fundamental rights. However, that case did not examine Narasu: here, Chandrachud J. does, and specifically finds that its reasoning is flawed.

This is very important, because Narasu also held that “personal law” – that is, uncodified religious law – was outside the scope of fundamental rights review. The reasoning for that was the same, and so, also stands discredited. As Chandrachud J. points out, the reasoning given by the Bombay High Court in Narasu – that, for example, the existence of Article 17 shows that the framers intended to specifically include customs that they wished to proscribe – does not hold water. More importantly, however, is the affirmative case that Chandrachud J. advances:

Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution. (paragraph 99)

In other words, there cannot be islands of norms and prescriptions that are granted constitutional immunity.  As with the ERP and the untouchability argument, the rationale is the same: the individual is the basic unit of the Constitution, and norms, practices, prescriptions, rules, commands and whatever else that have the potential to impair individual dignity or block access to basic goods in society, must pass constitutional scrutiny (paragraph 100).

And indeed, Chandrachud J. goes on step further with this thought, noting that the ERP test itself ought – in future – give way to a test that asks not whether a practice is “essential” (which is, after all, a question that the believers, and not the Court, should answer), but asks whether the impugned practice is socially exclusionary, and denies individuals access to the basic goods required for living a dignified life (Disclaimer: this part of the judgment cites an article of mine, and I will readily admit to being biased in favour of the anti-exclusion argument.)

Conclusion

In the previous post, we discussed Malhotra J.’s dissent. We saw how Malhotra J. raises an important question: how do we reconcile the Constitution’s commitment to pluralism with judicial intervention into internal religious affairs? We have now seen how Chandrachud J. has answered it: the commitment to pluralism and respect for group autonomy must be understood within a Constitutional framework that places individual freedom and dignity at its heart. The Constitution recognises group autonomy because, often, group life promotes individual freedom and dignity. Community, after all, is crucial to self-development. But groups can also restrict freedom and dignity, and it is in those circumstances that a Court must step in and balance the competing claims.

In Sabarimala, Chandrachud J. attempts to demonstrate how, in fact, the proscription in question does restrict freedom and dignity, and therefore, should be judicially invalidated. He does so by telescoping outwards from the singular event itself (exclusion from worship in one temple), and showing how this single event of exclusion is nested in an entire social and institutional order that is characterised by hierarchy, subordination, and exclusion. We may call this patriarchy, or we may call this something else, but the argument is clear: it’s not about worship at Sabarimala (which is what Malhotra J. limits it to, and therefore classifies it as simply about seeking morality or rationality), but about what exclusion from worship means in a broader context. To take an example: think of a Whites-Only signboard outside a restaurant in Apartheid South Africa. The point is not that one private restaurant owner has decided to exclude blacks from his private property. The point, rather, is how that signboard is an integral element of the practice and institution of apartheid. The crucial insight that Chandrachud J. brings in his judgment is that recognition of the institutional character of discrimination and inequality, and how that must be constitutionally combatted. As he notes, towards the end:

In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against practices that depart from the values that underlie the Constitution – justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions, but on the structures of oppression and domination which exclude these identities from participation in an equal life. An indispensable facet of an equal life, is the equal participation of women in all spheres of social activity. (paragraph 117)

It is that which makes it a transformative judgment.

The Sabarimala Judgment – II: Justice Malhotra, Group Autonomy, and Cultural Dissent

I had originally intended this series to follow a more familiar chronology – moving through the concurring opinions, and ending with Justice Indu Malhotra’s dissent. However, on a closer reading of the judgment, it strikes me that Malhotra J.’s dissent raises some crucial points, which remain unanswered in the opinions of the Chief Justice and Nariman J. – but are addressed in Chandrachud J.’s concurrence. For this reason, I will use this post to discuss the dissenting opinion, and flag its foundational arguments, and then – in the next post – examine Chandrachud J.’s concurrence.

Maintainability

How unusual – but how refreshing – to see a judge taking maintainability seriously, and that too in a PIL! Malhotra J. starts her analysis with the following observation:

The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the Petitioners’ personal rights to worship in this Temple have been violated. The Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-standing religious customs and usages of a sect, at the instance of an association/Intervenors who are “involved in social developmental activities especially activities related to upliftment of women and helping them become aware of their rights”, would require this Court to decide religious questions at the behest of persons who do not subscribe to this faith. (paragraph 7.2).

Malhotra J. goes on to warn that the issue of maintainability is not a “mere technicality” in this case, but something more important. It would open the floodgates for “interlopers” to question all kinds of religious beliefs and practices, something that would cause even graver peril for “religious minorities.” (paragraph 7.3) Malhotra J. then sums up:

The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practises which are found to be oppressive or pernicious. (paragraph 7.4).

While Malhotra J.’s concern about the floodgates is well-taken, I am not sure that that, by itself, can be a ground for rejecting the PIL on the basis of maintainability. However, I believe that in observing that “[The Article 14 claim] has to be adjudged amongst the worshippers of a particular religion or shrine“, Malhotra J. articulates a crucial point, which demonstrates why, even in the PIL era, the issue of maintainability is particularly crucial to this case.

To understand why, let us examine the nature of the claim. The claim is for women between the ages of ten and fifty to be allowed to enter Sabarimala. This claim is set up against the argument of the Sabarimala priest (and certain other devotees), that the entry of women is barred by religious custom. Sabarimala, therefore, is a classic example of what Madhavi Sundar calls “cultural dissent“: norms and values defined and imposed by cultural gatekeepers and dominant groups, have been challenged.

That cultural dissent is at the heart of Sabarimala is recognised by both the Chief Justice and Nariman J., in their opinions. The Chief Justice notes that Article 25(1) protects both inter-group and intra-group rights. In a very interesting observation, Nariman J. suggests that when there is internal dissent about a practice, its “essential” character to the religion (and therefore, its claim to protection under Article 25(1)) will be thrown in doubt. However, what is crucial to note is this: by its very nature, a claim to cultural dissent has to be articulated by the dissenters themselves. Because what is under challenge – as Justice Malhotra recognises – is the question of whether certain practices – internal to the religion – are “oppressive” or not. And given that religions are self-contained and self-referential systems of belief and practice, the question of what constitutes “oppression” will, in most cases, be an internal question.

Let me be clear: this is not an argument against the Courts interfering in religious practices on the touchstone of equality and non-discrimination. Quite the opposite: when marginalised groups within cultures or religions challenge oppressive norms or practices, more often than not, they will need an external authority (such as Courts, acting under the Constitution) to support them in that struggle. But what I am saying is that the claim must originate from the marginalised groups themselves. An external authority cannot assume the mantle of speaking on their behalf.

There is, of course, a significant exception to this: when the marginalised group is (literally) silenced from articulating its claims. But I feel considerable hesitation in applying that standard to Sabarimala. Are we going to say that every woman devotee at Sabarimala is either too brainwashed or too terrorised to approach the Court for her rights? That would seem to me to be not only factually incorrect, but highly demeaning as well – a saviour complex redolent of Lila Abu-Lughod’s excoriation of liberal interventionism in her tellingly-titled article, “Do Muslim Women Really Need Saving?

I recognise that this is an unpopular position, I believe that the Majority should have voted with Malhotra J. to dismiss the PIL on grounds of maintainability, while granting liberty to any affected party to approach the Court through a writ petition.

Group Autonomy

Running through Malhotra J.’s judgment is a vision of group autonomy. She believes that the Constitution’s religious freedom clauses act to insulate religious groups from having their beliefs and practices subjected to constitutional scrutiny. As she observes:

It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practises, which would be outside the ken of the Courts. It is not for the courts to determine which of these practises of a faith are to be struck down, except if they are pernicious, oppressive, or a social evil, like Sati. (paragraph 8.2)

The devil, of course, is in the detail. Malhotra J. concedes that practices that are “pernicious, oppressive, or a social evil” can be reviewed by Courts. But that, indeed, was the Petitioners’ argument in Sabarimala: excluding women from the temple was a pernicious and oppressive practice, even though it did not (of course) reach the level of Sati. How does Malhotra J. respond to this? There is no immediate answer, but we do get something of an answer late in the judgment. In paragraph 10.13, Malhotra J. observes:

Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts. (paragraph 10.13)

The argument, therefore, appears to be this: a practice like Sati is not simply “religious”. In actually killing women, its impacts go far beyond, and into the “real world.” The question of the right to worship at Sabarimala, however, remains a question internal to the religion: its a moral issue, a question of whether within the community of Sabarimala devotees, men and women are treated equally. For Justice Malhotra, that is not something that Courts can go into. As she observes towards the end of the judgment:

Worship has two elements – the worshipper, and the worshipped. The right to worship under Article 25 cannot be claimed in the absence of the deity in the particular form in which he has manifested himself. (paragraph 13.9)

 

For Malhotra J., therefore, unlike Sati, Sabarimala is a pure question of faith, and therefore immune from judicial review and the application of constitutional norms of equality and non-discrimination.

Why is this so? Malhotra J. buttresses this point by two further arguments, both of which are grounded in principles of group autonomy. The first is that of “essential religious practices” [ERPs]. Malhotra J. takes strong issue with the Majority for holding that the exclusion of women is not an essential religious practice (and therefore not protected by Article 25(1)), and argues, instead, that this determination should be left solely to the religious community itself (paragraph 10.10). In the present case, Malhotra J. relies upon the statements of the Sabarimala Thanthri and the Travancore Devaswom Board to the effect that “the limited restriction on access of women during the notified age of 10 to 50 years, is a religious practise which is central and integral to the tenets of this shrine, since the deity has manifested himself in the form of a ‘Naishtik Brahmachari’.” (paragraph 13.7)

This is an important point, because it goes entirely against the grain of six decades of ERP jurisprudence, where the Court – relying upon textual and scriptural materials – makes this determination. It is also, in my opinion, correct (as I have pointed out on this blog before): the Courts – as a number of scholars have argued for a while now – is entirely unequipped to make determinations about what practice is or is not “essential” to religion: it lacks both the competence and the legitimacy to do so.

There is, of course, a latent peril in advocating this view: and that is that in any community (religious or otherwise) norms and practices are inevitably imposed top-down by dominant groups, who are invariably male. But this is exactly where Malhotra J.’s initial point about maintainability comes in: it is one thing when within a group, norms and practices are challenged, and the marginalised sub-groups invoke the Court’s aid. But it is another thing when an external party comes to Court, and is opposed by the religious community’s gatekeepers: in that situation, Malhotra J.’s views about the nature and scope of the ERP test make eminent sense.

The second argument advanced by Malhotra J. pertains to constitutional pluralism. It was argued by the Petitioners that discrimination against women runs counter to constitutional morality. Malhotra J. turns this argument on its head, noting that constitutional morality in India’s plural society requires respect and tolerance for different faiths and beliefs, which have their own sets of practices that might nevertheless appear immoral or irrational to outsiders (paragraphs 11.2, 11.4, 11.6 & 11.8).

The full argument, therefore, is this: our Constitution respects religious pluralism. Pluralism entails granting to the diverse religious groups and communities within our nation, the freedom of internal self-government, and the freedom to decide what norms and practices are integral to their existence and functioning. Where these norms or practices result in actual social harm, the Court can step in; however, the Court cannot intervene when the grounds of challenge are limited to bare immorality, irrationality, or unequal treatment. And the Court can especially not do so when the challenge is brought by external parties.

Religious Denomination

Malhotra J. then addresses the statutory point: that is, the question of whether, in view of Section 3 of the 1965 Act (guaranteeing non-discriminatory access to “all” classes), whether Rule 3(b) (that allows for excluding women if custom demands it) is ultra vires. Malhotra J. holds that it is not, on the ground that the worshippers of Lord Ayappa at Sabarimala constitute a separate “religious denomination”, and is therefore exempted from the operation of Section 3 as per the Act itself (through a specific proviso).

Unfortunately – and in stark contrast with the rest of Malhotra J.’s judgment – this part is disappointingly sketchy. On the basis of a Government notification, Malhotra J. asserts that the worshippers of Lord Ayappa at Sabarimala “follow a common faith, and have common beliefs and practises.” (paragraph 12.3) She then goes on to note, on the basis of precedent, that:

If there are clear attributes that there exists a sect, which is identifiable as being distinct by its beliefs and practises, and having a collection of followers who follow the same faith, it would be identified as a ‘religious denomination’. (paragraph 12.8)

Malhotra J. recognises, however, that this is a considerably more relaxed threshold than that articulated by previous judgments, and followed by the Majority. She tries to get around this by once again implicitly invoking the group autonomy principle, and arguing that a “liberal” interpretation should be accorded to the question of what constitutes a “religious denomination.” But this will not do: unlike the question of essential religious practices, which are required for threshold protection under the Constitution’s religious freedom clause, religious denominations are entitled to special and differentiated rights under Article 26: maintenance of institutions, acquisition and administration of property, and (textually) a greater autonomy in determining internal religious matters. For this reason, the critique of the essential religious practices standards cannot be uncritically applies to the definition of religious denominations: there are good reasons for a higher threshold, adjudicated by Courts. To depart from that principle would require a detailed and persuasive argument, which Malhotra J. does not offer. And indeed, she appears to recognise this herself, when she notes at paragraph 12.10:

The proper forum to ascertain whether a certain sect constitutes a religious denomination or not, would be more appropriately determined by a civil court, where both parties are given the opportunity of leading evidence to establish their case.

Miscellaneous

Malhotra J. makes two further findings. She rejects the argument – advanced by Amicus Curae – that Article 15(2) includes temples under the definition of “places of public resort.” And she also rejects the argument – advanced by the Interveners – that exclusion of women on grounds of menstruation amounts to “untouchability” under Article 17 of the Constitution. Both these arguments are based on the structure and the drafting history of the Constitution. With respect to Article 15(2), I believe the Malhotra J. is unarguably correct. Article 17 will be addressed in the next post.

Conclusion

Justice Malhotra’s dissent is powerful and persuasive on many counts. On maintainability, on essential religious practices, and on constitutional pluralism, I believe that her arguments are correct, and truer to the constitutional text and history than prevailing Indian religious freedom jurisprudence, which the opinions of CJI Misra and Nariman J. closely hew to.

Where then lies the disagreement? At one level, it is statutory: if Malhotra J.’s religious denomination argument is incorrect, then her case falls purely on statutory grounds, and the Majority is vindicated. I have a deeper disagreement, however, with the foundational assumption of Malhotra J.’s dissent, which comes through in her paragraph differentiating Sabarimala and Sati: the assumption is that in India, you can cleanly separate the religious and the social. This is a reality that has been recognised throughout history: in the Drafting Committee, Alladi Krishnawamy Iyer wryly remarked that “there is no religious matter that is not also a social matter.” In the Constituent Assembly, Ambedkar memorably spoke about how vast religious conceptions are in India, covering everything from birth to death. In his dissenting opinion in Saifuddin, Chief Justice Sinha discussed how religious excommunication had a debilitating impact upon civil rights. And so on. The point is this: it is a mistake to uncritically assume that Sabarimala is simply a right-to-worship case, a straightforward internal dispute within a religious community. It is a mistake, because it ignores how deeply intertwined religious, social, and public life is in India, and how discrimination within one sphere inevitably spills over into other spheres. Therefore, Malhotra J. is entirely correct when she says that practices that are “pernicious, oppressive, or a social evil” can be subjected to judicial review. But the question of what constitutes “oppressiveness” is more nuanced and complex than she allows.

It is that nuance which forms the heart of Chandrachud J.’s concurrence, which is what we shall turn to in then ext post.

The Sabarimala Judgment – I: An Overview

Earlier today, a Constitution Bench of the Supreme Court held, by a 4 – 1 Majority, that the Sabarimala Temple’s practice of barring entry to women between the ages of ten and fifty was unconstitutional. While the case raised a host of complex issues, involving the interaction of primary legislation (statute), subordinate legislation (rules), and the Constitution, the core reasoning of the Majority was straightforward enough. On this blog, we will examine the Sabarimala Judgment in three parts. Part One will provide a brief overview of the judgment(s). Part II will examine some of the issues raised in the concurring judgment of Chandrachud J. And Part III will analyse the dissenting opinion of Indu Malhotra J.

Let us briefly recapitulate the core issue. The exclusion of (a class of) women from the Sabarimala Temple was justified on the basis of ancient custom, which was sanctioned by Rule 3(b), framed by the Government under the authority of the 1965 Kerala Hindu Places of Worship (Authorisation of Entry Act). Section 3 of the Act required that places of public worship be open to all sections and classes of Hindus, subject to special rules for religious denominations. Rule 3(b), however, provided for the exclusion of “women at such time during which they are not by custom and usage allowed to enter a place of public worship.” These pieces of legislation, in turn, were juxtaposed against constitutional provisions such as Article 25(1) (freedom of worship), Article 26 (freedom of religious denominations to regulate their own practices), and Articles 14 and 15(1) (equality and non-discrimination).

In an earlier post, I set out the following map as an aid to understanding the issues:

(1) Is Rule 3(b) of the 1965 Rules ultra vires the 1965 Act?

(2) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid?

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution?

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)?

(5) If the answer to (4) is “yes”, then is the exclusion of women nonetheless barred by reasons of “public order”, “health”, “morality”, or because of “other clauses of Part III”, which take precedence over Article 25(1)?

(6) Do Sabarimala worshippers constitute a separate religious denomination under Article 26?

(7) If the answer to (6) is yes, then is temple entry a pure question of religion?

While the judgments are structured slightly differently, this remains a useful guide. Here is a modified map, with the answers:

(1) Does the phrase “all classes” under the Act include “gender”? By Majority: Yes.

(2) Do Sabarimala worshippers constitute a separate religious denomination under Article 26, and are therefore exempted under the Act from the operation of Section 3? By Majority: No. Malhotra J. dissents.

2(a) Is Rule 3(b) of the 1965 Rules therefore ultra vires the 1965 Act? By Majority, logically following from (1) and (2): Yes. However, Nariman J., instead of holding it ultra vires, straightaway holds it unconstitutional under Articles 14 and 15(1). Malhotra J. – also logically following from 2 – dissents. 

(2b) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women from temples – constitutionally valid? Does not arise.  

(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article 25(1) of the Constitution? Per Misra CJI and Khanwilkar J.: Yes, in theory. Per Chandrachud J.: No, because it violates constitutional morality. Per Nariman J.: No, because it violates Article 25(1), which stipulates that all persons are “equally entitled to practice religion.” Malhotra J.: Yes. 

(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an “essential religious practice” protected by Article 25(1)? Per Misra CJI and Khanwilkar J.: No, on facts. Per Nariman J.: Assuming the answer is yes, (3) answers the point. Per Chandrachud J.: No, on facts. Per Malhotra J.: Yes, on facts.  

An overview of the judgments handed down by the CJI and Khanwilkar J., and Nariman J., is provided below:

Misra CJI and Khanwilkar J. 

Misra CJI and Khanwilkar J. hold that the devotees of Lord Ayappa at Sabarimala have failed to establish that they constitute a “separate religious denomination” (paragraph 88 onwards). This is because the test for “separate denomination” is a stringent one, and requires a system of distinctive beliefs, a separate name, and a common organisation. The Sabarimala Temple’s public character (where all Hindus, and even people from other faiths) can go and worship, along with other temples to Lord Ayappa where the prohibition of women does not apply, leads the two judges to hold that it does not constitute a separate “denomination.” Misra CJI and Khanwilkar J. then hold that the fundamental rights chapter applies to the Temple, as it is governed by a statutory body (the Devaswom Board). Consequently, women have an enforceable Article 25(1) right to entry. This right is not undermined by a contrary right of exclusion because, on facts, excluding women does not constitute an “essential religious practice” that is protected by Article 25(1). This is because no scriptural or textual evidence has been shown to back up this practice (paragraph 122), and it is not possible to say that the very character of Hinduism would be changed if women were to be allowed entry into Sabarimala (paragraph 123). Moreover, on facts, this practice appears to have commenced only in 1950, and therefore lacks the ageless and consistent character that is required of an “essential religious practice” (para 125). Therefore – Misra CJI and Khanwilkar J. hold – since Section 3 of the 1965 Act prohibits discrimination against “any class” of Hindus, and the Temple is not a denominational temple, Rule 3(b) is ultra vires the parent Act, and therefore must fall (paras 132 and 141 – 142).

Nariman J. 

Nariman J. accepts, for the purposes of argument, that barring women of a certain age from accessing Sabarimala is an essential religious practice, and therefore protected by Article 25(1) (paragraph 25). However, he agrees with Misra CJI and Khanwilkar J that Sabarimala fails the rigorous test for a “separate denomination.” Article 26, therefore, is not attracted, and the proviso to S. 3 of the Act is not attracted (paragraphs 26 – 27). Therefore, even if there is an essential religious practice excluding women, this practice is hit by Section 3 of the Act, which provides for non-discriminatory access to all “classes” of Hindus (paragraph 28). This is further buttressed by the fact that the 1965 Act is a social reform legislation, and therefore, under Article 25(2)(b) of the Constitution, can override the right to religious freedom (paragraph 28).

However, Nariman J. adds that even otherwise, this case involves a clash of rights under Article 25(1): the right of women to worship, and the right of the priests to exclude them. The text of Article 25(1) – which uses the phrase all persons are “equally entitled” to practice religion, decides the clash in favour of the women. (paragraph 29).

Even otherwise, the fundamental right of women between the ages of 10 and 50 to enter the Sabarimala temple is undoubtedly recognized by Article 25(1). The fundamental right claimed by the Thanthris and worshippers of the institution, based on custom and usage under the selfsame Article 25(1), must necessarily yield to the fundamental right of such women, as they are equally entitled to the right to practice religion, which would be meaningless unless they were allowed to enter the temple at Sabarimala to worship the idol of Lord Ayyappa. The argument that all women are not prohibited from entering the temple can be of no avail, as women between the age group of 10 to 50 are excluded completely. Also, the argument that such women can worship at the other Ayyappa temples is no answer to the denial of their fundamental right to practice religion as they see it, which includes their right to worship at any temple of their choice. On this ground also, the right to practice religion, as claimed by the Thanthris and worshippers, must be balanced with and must yield to the fundamental right of women between the ages of 10 and 50, who are completely barred from entering the temple at Sabarimala, based on the biological ground of menstruation.

And insofar as Rule 3(b) is concerned, Nariman J. holds it directly contrary to Article 15(1), and strikes it down.

Consequently, like the Majority – but using a different approach – Nariman J. holds in favour of the right of women to enter Sabarimala.

The Aadhaar Judgment and the Constitution – I: Doctrinal Inconsistencies and a Constitutionalism of Convenience

(In the previous post, we began a four-part series examining the factual claims that are at the heart of the Majority judgment in Aadhaar. Parallel to that, we shall also be running a series on the legal arguments relied on by the Majority. This is the first post in that series, on the substantive aspects. In subsequent posts, we shall examine the issue of the money bill, and the standards of review employed by the Court.)

The Aadhaar Judgment – as we have noticed – relies heavily upon certain factual assumptions to arrive at its conclusions. Surprisingly for a constitutional judgment, law and doctrine takes a relative backseat. To the extent that it does, however, rely on legal doctrines, these too must be subjected to careful scrutiny.

Proportionality, Burdens, and the Strange Disappearance of Facts 

The overarching legal standard – as discussed previously – is that of proportionality. The Majority – correctly – holds that the Aadhaar programme, and the provisions of the Aadhaar Act, must be tested on the touchstone of proportionality. However, as I pointed out in the first post, the Majority’s articulation of the proportionality standard is far from satisfactory. After noticing how different jurisdictions apply the proportionality standard in slightly different ways, the Majority – without any justification whatsoever – adopts the South African constitutional scholar’s David Bilchitz’s formulation of the test. I have the utmost respect for the scholarship of Professor Bilchitz, but this will not do. As Seervai pointed out a few decades ago, while critiquing the uncritical reliance of the 1980s Court on John Rawls’ theory of justice, it is imperative for the Court to explain why David Bilchitz’s articulation of proportionality is the relevant to the Indian Constitution; what about the Constitution’s text, structure, and our judicial precedent is so Bilchitz-ian? There is no explanation forthcoming.

Be that as it may. The importance of Bilchitz’s formulation, the Court tells us, is that with respect to the “necessity” prong of the proportionality standard, it strikes a middle ground between two extremes: by insisting on a rigorous scrutiny of the possible alternatives to the impugned measure, it requires the State to justify that its chosen measure actually infringes rights to the minimal extent. At the same time, it doesn’t allow the Court to substitute its policy preferences for that of the Parliament, by striking down a measure on the basis that some alternative might be more desirable or beneficial.

Now, what are the exact parameters of the Bilchitz approach to proportionality? The Majority extracts them at paragraph 124:

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. (paragraph 124)

The underlined parts of the Majority’s test (which, incidentally, is a rough paraphrasal of Bilchitz actually says, and which I shall come to shortly) demonstrate that the proportionality standard is a heavily fact-oriented enquiry. Now, in the context of the Aadhaar challenge (specific to Section 7 and the Aadhaar Act), what were the facts that were necessary to the proportionality enquiry? The first set of crucial facts would, naturally, pertain to how “effective” Aadhaar-Based Biometric Authentication [“ABBA”] was at plugging welfare leakages (the stated goal of the Aadhaar Act). The second set of facts would pertain to the alternatives to ABBA, and how effective they were towards achieving the same goal. The Court would then examine the extent to which these alternative measures were more protective of individual rights, and then come to a conclusion about whether the necessity standard (qua Bilchitz) had actually been satisfied: that is, all things considered, had the Government selected the least restrictive alternative to achieve its goal.

What did the Majority say with respect to the first set of facts? The answer is at paragraph 72:

But the argument based on alleged inaccurate claims of savings by the Authority/Union of India in respect of certain programmes, like saving of USD 11 billion per annum due to the Aadhaar project, as well as savings in the implementation of the MGNREGA scheme, LPG subsidy, PDS savings need not detain us for long. Such rebuttals raised by the petitioners may have relevance insofar as working of the Act is concerned. That by itself cannot be a ground to invalidate the statute. (paragraph 72)

This astonishing paragraph shows that either the Majority completely failed to understand the test that Bilchitz actually proposes or, having understood it, simply refused to apply it correctly. The “inaccurate claims of savings” – on which reams of evidence were presented to the Court – were not about the “working of the act”; rather, they were about the “effectiveness” of the measure (ABBA), and therefore, qua Bilchitz, an absolutely critical component of the necessity standard. To remove any doubt, here is what Bilchitz actually says in the article that the Majority paraphrased:

A judgement must be made whether the government measure is the best of all feasible alternatives, considering both the degree to which it realises the government objective and the degree of impact upon fundamental rights (‘the comparative component’). [Bilchitz, “Necessity and Proportionality” in Reasoning Rights 61 (Hart 2014)].

The arguments of the Petitioners was precisely that Aadhaar failed the necessity standard because it did not realise the government objective to the extent that the invasion of rights was justified, once you considered the background context and the availability of alternatives; and the evidence for this was that the Government’s primary justification – welfare savings – was simply not borne out, either by the facts, or by the logic of what constitutes leakage (identity fraud, quantity fraud, and eligibility fraud, with ABBA – at best – being able to tackle only the first). In a judgment absolutely riddled with factual assumptions, however, in this area – where facts were crucial – the Majority refused to look at them.

Now, how did the Majority deal with the second important component of the necessity standard – that of alternatives? We come to paragraph 280:

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. In fact, on repeated query by this Court, even the petitioners could not suggest any such method. (paragraph 280)

As I have said in my first post, with the greatest of respect, this is not only false, but demonstrably false. First, it is on the record. Consider paragraph 97 of the written submissions of Mr. K.V. Viswanathan:

It is the State’s burden to show that Aadhaar is both necessary and proportionate, i.e. there exist no other alternatives that could have achieved their stated goals, using a less intrusive method [See Peck v UK, (2003) ECHR 44, ¶¶76-87 and Modern Dental College & Research Centre v State of MP, (2016) 7 SCC 353, ¶¶60-65]. As a matter of fact, there exist less-invasive alternatives such as Smart Cards and social audits that have been included in sec. 12 of the NFSA and can help reduce diversion/leakages. In fact, these Smart Cards (using hologram, RFID chip, or OTP) have helped eliminate barriers of distance or location to avail entitlements, such as in Chhattisgarh.38 Other alternatives such as food coupons, digitisation of records, doorstep delivery, SMS alerts, social audits, and toll-free helplines have also helped. 39 For instance, the Tamil Nadu PDS system is run using smart cards and electronic POS Machines and is in the process of replacing its 1.89 crore ration cards with smart cards, at a cost of over Rs 300 crores. 40 The very fact that the State has not examined such alternatives itself is enough to show that they have not discharged their burden under Art. 21. The fact that alternatives exist, and that the stated purposes can be achieved without invading privacy, further fortifies the submissions of the Petitioners herein.”* [internal footnotes omitted]

But secondly – and even more importantly – it is acknowledged by Justice Bhushan in his concurrence! Here is what Bhushan J. says:

At this juncture, we may also notice one submission raised by the petitioners that Aadhaar Act could have devised a less intrusive measure/means. It was suggested that for identity purpose, the Government could have devised issuance of a smart card, which may have contained a biometric information and retain it in the card itself, which would not have begged the question of sharing or transfer of the data. We have to examine the Aadhaar Act as it exists. It is not the Court’s arena to enter into the issue as to debate on any alternative mechanism, which according to the petitioners would have been better. (paragraph 191)

The absurdity is evident. The Majority adopts a standard of proportionality that requires it to consider alternatives, but states that no alternatives have been proposed. Justice Bhushan acknowledges that alternatives have been proposed, but says that constitutional standard does not allow him to consider them. This, surely, is enough to demonstrate that this judgment sinks under the weight of its own contradictions.

As a final point, it is important to note that even if the Petitioners had not suggested any alternatives, the Majority makes no mention of where the burden of proof lies. This is contrary to Justice Chandrachud’s dissent, where it is made clear that because it is the State that is infringing rights, the State bears the burden of showing that there exist no alternatives that could satisfy the State goal.

On proportionality, therefore – which is the heart of the judgment as far as the law goes – this is what the Majority does. It adopts a standard without explaining why. It then either misunderstands or misapplies that very standard that it has chosen to adopt. It erases the two most crucial components of that standard, and then finds that Aadhaar is proportionate all along. No wonder, then, that the necessity prong – which is the most involved and detailed aspect of the proportionality standard – is effectively reduced to one paragraph of “analysis.” Indeed, given how the Majority essentially smuggles its conclusions into its premises, it is difficult to imagine how it could ever have held that Aadhaar was not proportionate.

Reasonable Expectation of Privacy

A large part of the Majority’s reasoning is based on the presumption that the privacy interests in the Aadhaar challenge are of a weak, or attenuated nature. To establish this, the Majority applies the “reasonable expectation of privacy” standard, borrowing it from Puttaswamy. The Majority notes that this standard has its genesis in US law, and cites the judgment in Katz for the proposition that there are two components of the test:

“The first was whether the individual, by his conduct has exhibited an actual (subjective expectation of privacy), and the second, whether the subjective expectation is one that the society is prepared to recognize as reasonable. This was also followed in Smith v. Marlyand.” (paragraph 290)

Unfortunately, however, the Majority gets its wires badly crossed. The American “reasonable expectation of privacy” standard – which sets great store by what “society” perceives to be reasonable – was not the standard that was adopted in Puttaswamy (indeed, Nariman J., in his concurring opinion, categorically rejected it). Here is what was adopted in Puttaswamy:

Privacy at a subjective level is a reflection of those areas where an individual desire to be left alone. On an objective plane, privacy is defined by those constitutional values which shape the content of the protected zone where the individual ought to be left alone. (Puttaswamy plurality, paragraph 169)

Puttaswamy, therefore, abandoned the American view of “objective expectation of privacy” as determined by what society considers to be private, and pegged its colours to the mast of the Constitution. The Majority in Aadhaar appears not to have grasped this point, because it assumes that the American standard is the standard incorporated into Indian law. And it appears to apply this standard as well: it holds that demographic information is already demanded by multiple other Acts, and that “core biometric information” is “minimal” and is also asked for by the State while issuing driving licenses and so on. In other words, the Majority’s analysis can be summed up as follows: the information that Aadhaar asks for is also asked by the State in other contexts, and therefore, the privacy interest is minimal. However, this is exactly the discredited American approach to privacy (which has been in the process of being quietly abandoned in the country of its birth).

Unsurprisingly, it is Justice Chandrachud in his dissent who applies the correct standard (unsurprising because it was he who authored the Puttaswamy plurality), and notes that because the information collected pertains to the body, it is intimate enough to attract a high privacy interest. The distinction is important, because it is the Majority’s devaluation of the privacy interest in demographic and biometric information that allows it to hold that the “balancing” prong of the proportionality standard (balance between the State goal and the degree of invasion of rights) is justified. Indeed, the Majority appears to believe that because of the low privacy interests in demographic and biometric information, there is no invasion at the stage of collection at all!

… the issue is not of taking the aforesaid information for the purpose of enrolling in Aadhaar and for authentication. It is the storage and retention of this data, whenever authentication takes place, about which the concerns are raised by the petitioners. The fears expressed by the petitioners are that with the storage and retention of such data, profile of the persons can be created which is susceptible to misuse. (paragraph 296)

At a previous point in its judgment as well, the Majority claims that the Petitioners have no problem with collection of information, only with its storage and retention (leading to the threat of surveillance). Once again – and I do not say this lightly – this is demonstrably false, and false from the record. Multiple counsel – lead by Mr. Shyam Divan – argued that forcible collection of biometric and demographic information violates bodily and informational privacy. Section II of the Written Submissions of Mr. K.V. Viswanathan (linked above) is titled “COLLECTION OF IDENTITY INFORMATION UNDER THE AADHAAR ACT [SEC. 3, 4(3), 7 & ALLIED SECTIONS AND REGULATIONS] VIOLATES ART. 14 AND ART. 21.” Here is a sample paragraph:

The inviolability of the human body rests upon two deeper premises: (a) the idea that every individual ought to be treated as an end in herself (and not as a means to an end), and (b) that there is an intrinsic value in an individual determining how and in what manner to use her body. Thus, the inviolability of the body does not become salient only in extreme situations like torture, forced sterilisations, and forced labour, but also in situations that appear innocuous, or at least, do not seem to present a tangible or expressible harm. The core issue then, is not whether an identifiable physical harm to the body can be pointed out, but whether the individual’s decision about how to use her body is taken over by another entity (in this case the State), who decides for her instead. (paragraph 18)

This too, forms part of the arguments of Chandrachud J.’s dissenting opinion, where he notes that collecting information from people without any reasonable suspicion, but on the presumption that they might one day commit identity fraud, is per se disproportionate.

It is, of course, the Majority’s prerogative whether or not finds these arguments persuasive. But it is not the Majority’s prerogative to invert reality and claim that something that was argued in open Court was never actually argued.

The Return of the Minuscule Minority, and Issues of Evidence

A significant set of arguments before the Court focused on exclusion. It was argued that ABBA, by its very nature, was exclusionary: the fallible nature of biometric authentication, its impact upon vulnerable sections of society (such as manual labourers  with worn-out fingers and the disabled), its impact in the context of ground realities in rural India with regular internet outages, and its propensity to set up a new class of middlemen (the PoS machine operators) all ended up excluding the very beneficiaries that it was meant to include. This, it was argued, was a violation of Article 21, and in its disproportionate impact, a violation of Article 14. To substantiate this claim, detailed affidavits, as well as scholarly articles, were placed before the Majority.

The Majority’s response is at paragraph 317:

In fairness to the petitioners, it is worth mentioning that they have referred to the research carried out by some individuals and even NGOs which have been relied upon to demonstrate that there are number of instances leading to the exclusion i.e. the benefits are allegedly denied on the ground of failure of authentication. The respondents have refuted such studies. These become disputed question of facts. It will be difficult to invalidate provisions of Parliamentary legislations on the basis of such material, more particularly, when their credence has not been tested. (paragraph 317)

And:

When it is serving much larger purpose by reaching hundreds of millions of deserving persons, it cannot be crucified on the unproven plea of exclusion of some. (para 319)

There are a few things I want to point out here. First – yet again – the Court has engaged in a selective account of the Petitioners’ arguments. It was not simply “research” done by NGOs and individuals, but the fact that it was placed before the Court on affidavit. Secondly – and more importantly – let us examine the Court’s approach. The Court says that these have become “disputed questions of fact” whose “credence has not been tested.” But for a large part of its judgment, this same Majority takes as gospel, points raised by the Chairperson of UIDAI in a power-point presentation made before the Court which was not even placed on affidavit! The Majority’s entire case on the functioning of the CIDR and the safeguards with respect to authentication and storage is drawn from this power-point presentation.

The legal double-standard here is breathtaking: the Court gives more evidentiary credence to a power-point presentation that has no legal sanctity as evidence, while ignoring evidence placed before it on affidavit, on the basis that it has become a “disputed question of fact”! And, as a side note, it’s worthwhile to note that if this will henceforth be the evidentiary standard applied by the Court, pretty much all of PIL will be thrown into a garbage bin (except for those PILs where the petitioners have the foresight of preparing PPTs).

Thirdly, it is difficult to find words to comment on the Court’s “unproven plea of the exclusion of some.” To me, it brings back memories of another, notorious line: “the so-called rights of the minuscule minority.” That ghost was evidently “exorcised” in Puttaswamy. Someone, it seems, forgot to inform the Majority.

Fourthly – and relatedly – the Majority goes on to record the Attorney-General’s statement that nobody will be excluded in case of an authentication failure, and notices that there is a circular to that effect. This, once again, mixes up legal standards. To understand why, consider the following observation in Shreya Singhal v Union of India:

The possibility of abuse of a statute otherwise valid does not impart to it any element of invalidity. The converse must also follow that a statute which is otherwise invalid as being unreasonable cannot be saved by its being administered in a reasonable manner. (paragraph 95)

This is a well-established proposition. Now note that the challenge to Section 7 was a challenge to its constitutionality, on the basis that it would have a disproportionate impact upon the most vulnerable, and that by design, it would serve to exclude people from accessing their basic entitlements (partly because of its nature, and partly due to prevailing conditions in India, such as internet penetration, possibility of machine failure etc.). Instead of meeting the objection at the level of the statute, the Majority instead relies upon the AG’s statement, and a circular! Once again, this is an inversion of the correct constitutional standard: a promise that the law will be implemented fairly is taken as a defence of its constitutionality.

Once again, it is the dissenting opinion of Chandrachud J., that gets this right. Chandrachud J. correctly notes that as long as the risk of exclusion is embedded into the design of the Act, it cannot be made mandatory; that is, before ABBA can be imposed as mandatory, it must first be guaranteed that, in the normal course of its operation, it will not exclude people and bar them from their Article 14 and 21 rights.

This is, of course, in stark contrast to the Majority, which appears to believe that the dictum “you cannot make an omelette without breaking eggs” also applies to fundamental rights. That, indeed, appears to be the upshot of the Majority’s view that as the Act is operated, “loopholes” will be plugged; the fact that those “loopholes” are actually about the denial of fundamental rights appears to make no difference; it is, ultimately, the same kind of callous disdain for fundamental rights that was so evident in the Koushal judgment.

Conclusion

There are other legal errors in the Majority judgment, which we may attempt to point out in a future post. For now, I want to say that on three absolutely critical points – proportionality, privacy, and exclusion – the Majority judgment is grossly erroneous. On proportionality, the Majority plucks out a standard without justifying it, applies it wrongly to boot, and wishes away inconvenient facts. On privacy, the Majority misunderstands Puttaswamy, and applies the incorrect standard. And on exclusion, the Majority applies double standards in its appreciation of evidence, mixes up a constitutional challenge with fair implementation, and winds up sounding like a rewind of Koushal v Naz. For all these reasons, and on these points, the Majority judgment needs to be reconsidered.

But what really stands out is how the Majority repeatedly claims – falsely – that certain arguments were never raised or never made, and attributes positions to the Petitioners that they never held. And to top that is its Janus-faced approach: it employs factual assumptions at some places, while wishing away facts at other places; it uses one approach to evidence at one place, and then changes that approach midway through the judgment; it borrows constitutional standards, but then fudges their application.

This is a constitutionalism of convenience, not of principle.

The Supreme Court Decriminalises Adultery

Today, in Joseph Shine v Union of India, a Constitution Bench of the Supreme Court struck down Section 497 of the Indian Penal Code, and decriminalised adultery. As we have discussed before on this blog, this was not a difficult case. The asymmetric nature of the provision – which punishes only the male participant, and that too only on the instance of the husband, and also not if the husband has “consented” or “connived” with respect to the act – is clearly based upon gendered stereotypes that view women as the property of their husbands, and also, as sexually submissive, liable to be “seduced” by men at any moment. Once that fact is clearly understood, there is precious little that can be said to defend the provision under the Constitution.

The four concurring opinions proceed along expected lines. They hold that the asymmetric character of the provision is indeed grounded upon ideas of gender subordination, is therefore “manifestly arbitrary”, and fails the test of Article 14 of the Constitution (and also puts paid to the State’s argument that the provision is necessary for preserving marriages). This would, of course, leave the door open for the legislature to recriminalise adultery through a gender-neutral provision. The Court, however, closes that door as well, noting that criminalisation of what is essentially a private matter – with no broader societal interest – would be an infringement of privacy. These two findings together mean that adultery is gone from the statute books – and will stay gone.

Equality and Non-Discrimination 

In addition to these – expected – lines of reasoning, there are certain interesting aspects on the issues of equality and discrimination in the concurring opinions of Justices Chandrachud and Malhotra, which carry forward the views that they had expressed last month in Navtej Johar v Union of India (the 377 judgment). Justice Chandrachud, for example, reiterates his argument that Article 14 analysis must go beyond the traditional classification test, and focus on substantive disadvantage:

Justness postulates equality. In consonance with constitutional morality, substantive equality is “directed at eliminating individual, institutional and systemic discrimination against disadvantaged groups which effectively undermines their full and equal social, economic, political and cultural participation in society.” To move away from a formalistic notion of equality which disregards social realities, the Court must take into account the impact of the rule or provision in the lives of citizens. The primary enquiry to be undertaken by the Court towards the realisation of substantive equality is to determine whether the provision contributes to the subordination of a disadvantaged group of individuals. (para 38)

It is important that this argument is made not in the context of Article 15(1), but Article 14. Framing Article 14 in the language of disadvantage means that the five groups that are not mentioned in Article 15(1) (sex, race, caste, religion, place of birth), but are nonetheless analogous to those groups by also representing sites of structural or institutional disadvantage (such, as for instance, disabled persons), are entitled to a more searching and rigorous scrutiny under Article 14, than the traditional (deferential) rational classification standard.

Chandrachud J. then goes beyond Article 14, and tests the adultery provision on grounds of Article 15(1) (non-discrimination on the basis of sex) as well. Advancing his Navtej Johar framework of analysis – which combined a contextual  approach to understanding the effect of the law on the one hand, with an interpretation of Article 15 that prohibits distinctions based on class stereotypes on the other – Chandrachud J. finds that the adultery provision discriminates on grounds of sex, as it is founded in stereotypes about women’s sexual agency, and gender roles within the family. As part of this analysis, he makes some important remarks about the public/private divide in constitutionalism: this is because, in order to engage in a stereotype-based analysis of the adultery provision, one must necessarily apply constitutional norms to and within the family structure, normally thought of as part of the “private sphere.” This leads him to make the following important observation:

Control over women’s sexuality is the key patriarchal assumption that underlies family and marriage  In remedying injustices, the Court cannot shy away from delving into the ‘personal’, and as a consequence, the ‘public’. It becomes imperative for us to intervene when structures of injustice and persecution deeply entrenched in patriarchy are destructive of constitutional freedom. But, in adjudicating on the rights of women, the Court is not taking on a paternalistic role and “granting” rights. (paragraphs 51 – 52)

And, subsequently:

It is the duty of this Court to break these stereotypes and promote a society which regards women as equal citizens in all spheres of life- irrespective of whether these spheres may be regarded as ‘public’ or ‘private’ …  While there has been a considerable degree of reform in the formal legal system, there is an aspect of women’s lives where their subordination has historically been considered beyond reproach or remedy. That aspect is the family. Marriage is a significant social institution where this subordination is pronounced, with entrenched structures of patriarchy and romantic paternalism shackling women into a less than equal existence …  Constitutional protections and freedoms permeate every aspect of a citizen’s life – the delineation of private or public spheres become irrelevant as far as the enforcement of constitutional rights is concerned. Therefore, even the intimate personal sphere of marital relations is not exempt from constitutional scrutiny. The enforcement of forced female fidelity by curtailing sexual autonomy is an affront to the fundamental right to dignity and equality. (paragraphs 62 – 63, 67).

The interrogation of the public/private divide is, of course, a significant part of the longer-term project of transformative constitutionalism; here, however, it has two immediate implications. By holding that the family structure and the institution of marriage are not immune from constitutional scrutiny, Chandrachud J.’s concurrence casts a shadow over two provisions, both of which have been discussed before on this blog: the marital rape exception under the Indian Penal Code, and restitution of conjugal rights (Section 9 of the Hindu Marriage Act). The defence to the first is invariably the “preservation of the institution of marriage”, while the latter was, actually, upheld on the basis that “cold constitutional law” could not be introduced into the warmth of the home. Both these justifications are now invalid: what Chandrachud J.’s opinion clarifies is that the autonomy of a social institution (whether the institution of marriage, or the home) is always subordinate to individual right to autonomy, exercised within that institution. Or, to put it another way, the Constitution exists to democratise private relationships, breakdown inequalities and hierarchies within those relationships, and ensure individual dignity and freedom not simply against the State, but also against social institutions and structures.

Justice Malhotra also carries forward her reasoning in Navtej Johar. On Article 14, she holds that as the historical foundation of the adultery provision was, indisputably, in the premise that women were chattels, the classification that it draws (between who is aggrieved and who isn’t, and who can sue and who can’t) is vitiated by an illegitimate constitutional purpose. Therefore, while the classification may be intelligible, and there may exist a rational nexus with a goal, that goal itself (in this case, the subordination of women) is ruled out by the Constitution:

Hence, the offence of adultery was treated as an injury to the husband, since it was considered to be a “theft‟ of his property, for which he could proceed to prosecute the offender. The said classification is no longer relevant or valid, and cannot withstand the test of Article 14, and hence is liable to be struck down on this ground alone. (paragraph 12.2)

This is an important step forward in centering the “illegitimate purpose” prong of the classification test under Article 14.

One last point: when adultery was upheld in 1954, it was upheld on the basis of Article 15(3) of the Constitution, which allows for “special provisions” to be made for women and children. Not punishing women for adultery was held to be a “special provision” for their benefit. All four opinions make it clear, however, that Article 15(3) cannot be pushed into service where the entire rationale of the law is discriminatory against women. Justice Malhotra articulates the point most clearly:

The true purpose of affirmative action is to uplift women and empower them in socio-economic spheres. A legislation which takes away the rights of women to prosecute cannot be termed as “beneficial legislation.” (para 14)

Treating Article 15(3) as an affirmative action provision (even though the language is broader) is, to my mind, an important step forward in articulating a clear and principles interpretation of this clause. Of course, as the example of President v Hugo shows us, this is not always as easy an enquiry as the adultery case allows. Often, disadvantage and stereotypes are bound up together, because stereotyping is the prelude to disadvantage. When you are trying to remedy disadvantage, then, sometimes you need to take stereotypes as your bases to do so. How the Court negotiates this, of course, is a question for the future.

Two Objections 

Two quibbles. The first is procedural. In 1954, the constitutional validity of the adultery provision was upheld by a five-judge bench. The present bench was bound by that. The Chief Justice and Chandrachud J. are both aware of this, and try to get around it. The Chief Justice argues that that case was on the “narrow point” of Article 15(3), while Chandrachud J. argues that it was on the distinguishable point of the woman not being made an abettor. I am unconvinced. Here is the first line of Yusuf Abdul Aziz:

The question in this case is whether section 497 of the Indian Penal Code contravenes articles 14 and 15 of the Constitution.

 

15(3) or no 15(3), abettor or no abettor, you can’t get clearer than this. The case was about a constitutional challenge to Section 497, and the constitutional challenge was rejected. Maybe there is a case that Article 21 was not raised, and that therefore, a five-judge bench could rule on that. I do think, however, that if Yusuf Abdul Aziz was to be overruled on the grounds of Article 14 and 15, a seven-judge bench needed to be constituted.

Secondly, at one point in his judgment, Nariman J. notes that Hindus never had the concept of divorce, because marriage was considered a sacrament. This is, with respect, historically inaccurate. It is true that among caste Hindus, divorce was an anathema; divorce, however, was frequent and accepted among lower castes, and this is a fact that has been recorded in multiple works of social and cultural history. It does, however, raise some interesting questions about what exactly do we talk about when we talk about transformative constitutionalism. As Karl Klare noted in the famous article that began it all, transformative constitutionalism is not simply about how you interpret the Constitution, but also about how law is taught and discussed. One important part of that is to focus more closely on the sources (both historical and otherwise) that are relied upon in judgments: for example, it is notable that, in a case of gender equality under the Indian Constitution, the first footnote in the Chief Justice’s opinion refers to John Stuart Mill, a British and white man, who lived in the 19th century. Transformative constitutionalism, I feel, must also deepen the sources that it relies upon – otherwise, we’ll still be decriminalising adultery while also making sweeping statements that are both incorrect and result in historical erasure, about the nature of marriage and divorce “among the Hindus.”

Guest Post: The Aadhaar Judgment and Reality – I: On Uniqueness

(As we discussed yesterday, the Majority judgment in Aadhaar is founded on a set of factual assumptions. We will, therefore, be running a series of four guest posts by Anand Venkat focusing solely on the factual claims that underly the judgment. The first of the four-part series is on the claim that biometric authentication is “unique identification”.)

How do you arrive at scientific truth? There are two distinct approaches: via positiva, or via negativa. Modern science proceeds mostly through via negativa, and a philosophy of falsifiability. A statement which is not falsifiable through observation, evidence or logic is just a conjecture. Prescribed methodologies and peer reviews are used to examine evidence about a scientific statement to ascertain how truthful it is within the boundaries of the experiment.

Why is this important and relevant for an analysis on the Aadhaar judgement?

It turns out that the majority opinion that upheld the constitutional validity of the Aadhaar project did so by a fundamental misunderstanding of not only the science behind biometrics, but also about science itself.  

This post will constrain itself to the factual and technical aspects of the Aadhaar judgement and specifically about biometric uniqueness.

I am Unique (vs) My biometrics are unique

The statement “I am Unique” needs careful examination. If I lose both my hands, in an unfortunate accident, Am I still unique?

What if I lose my eyes? Am I still Unique?

Why am I still unique, even after losing my eyes and arms? Where does my uniqueness come from? Does it come from parts of my body? Or does it come from the sum total of all my experiences, my genetic lineage, my social relationships and hence from the space in my mind, that exist independent of anything else?

This question is important because the Majority opinion has conflated two independent concepts in its opening line – Identity and Identification and thus asserts that “Aadhaar is Unique Identity” and Being Unique makes you the only one.

The basic assumption behind the opinion follows the logical thought process as described below:

  • Every human being is unique.
  • Every human being has a unique set of biometrics, which when considered together is unique and does not exist in any other human, born before or after for all time.
  • A technological solution (Aadhaar) hence can thus be devised to create a unique pattern for any human across all time, which can be mapped to a number.

The first scientific problem that the above reasoning presents is the issue of proof. If a statement is presented as true across all time and is applicable for every human ever born or will be born, how can it be proven “via positiva”? Clearly the only way to make a positive proof of the above statement would be to collect biometrics of every human ever born and will be born, and show that they are unique via empirical data. That would of course be an impossible exercise, which the UIDAI (or any one else) would be foolish to attempt.

One other approach for “via positiva” is however possible. An experiment could be designed to assert that specific fact for a small set of population, and a mathematical formalism could be used to extrapolate it for all population, across all time.

The extrapolation approach, however, can’t be certain about the fact since it uses small samples to arrive at conclusions for all population, across all time and hence must always be qualified with “error rates” or “confidence intervals”. In other words, all via positiva approaches that use extrapolation, are “probabilistic truth” and not “deterministic truth”.

The scientific issues then become:

  • Are these “confidence intervals” overstated or understated?
  • Are the mathematical formalisms used for extrapolation accurate?

Since the questions are crucial, we need to consider the evidence presented by both the Petitioners and the Respondents to the court, and also analyze, how the court came to the specific conclusion in paragraph 55, that “When it comes to obtaining Aadhaar card, there is no possibility of obtaining duplicate card”

Legal pronouncements and Mathematical theorems

There are two specific methods in science to prove facts.

  • Empirical evidence (Not all swans are black)
  • Mathematical proof (using formal logic)

Let us now examine how the majority can claim with complete certainty “there is no possibility of obtaining duplicate card”.

The petitioners provided empirical evidence to the court that UIDAI itself has acknowledged that as early as 2012 (Page 4), that 0.035% of duplicate enrollments, will have “more than one Aadhaar number”. Further the Planning commission in its report had acknowledged that 34,015 Aadhaar numbers were detected as biometric duplicates.

The planning commission report had this Q&A which is reproduced here in full (sic)

Question:  Does UIDAI assure 100% duplicate free database? Will there be no duplicate aadhaar numbers?

Answer: Biometric matching systems or de-duplication systems are essentially based on pattern matching and can be designed to achieve an accuracy of more than 99%. Higher the quality of biometric capture, lesser the probability of a duplicate being generated. However UIDAI aims for inclusiveness so that failure to enroll is negligible. Therefore generation of duplicate aadhaar number cannot be ruled out totally.

The UIDAI’s reply to an RTI request on 2016 is even more damning. It acknowledged that 1.69 Lakh duplicate Aadhaar numbers were cancelled.

The petitioners further provided for the court’s perusal, a mathematical proof written by Hans Varghese Mathews of CIS India and published in EPW after extensive peer reviews. While the UIDAI claimed that it’s error rate, will be fixed across all time at 0.057% (Page 4), Hans’ paper found out that false positives increase over time and will touch 1%, when 100 crores have enrolled and will keep increasing over time.

Further empirical evidence of the accuracy of Hans’ predictions was provided by the UIDAI itself and is summarized in the table below.

Table

This specific question put forth by Mr. Shyam Divan during oral argument to the UIDAI and the responses provided are as follows:

What are the total number of biometric De-duplication rejections that have taken place till date? In case an enrolment is rejected either for: (a) duplicate enrolment and (b) other technical reason under Regulation 14 of the Aadhaar Enrolment Regulations, what happens to the data packet that contains the stored biometric and demographic information?
Ans.: The total number of biometric de-duplication rejections that have taken place are 6.91 crores as on March 21, 2018. These figures do not pertain to the number of unique individuals who have been denied Aadhaar enrolment resulting in no Aadhaar issued to them. This figure merely pertains to the number of applications which have been identified by the Aadhaar de-duplication system as having matching biometrics to an existing Aadhaar number holder.The biometric de-duplication system is designed to identify as duplicate those cases where any one of the biometrics (ten fingers and two irises) match. However, very often it is found that all the biometrics match. It is highly improbable for the biometrics to match unless the same person has applied again.

Let us examine the UIDAI’s response here very carefully. It uses the word “highly improbable” which for an untrained eye is the same as “impossible”. However the word “probable” itself has a precise scientific meaning and is usually accompanied by a numerical figure.

For instance, to clear a sample question paper on CBSE 10th standard mathematics, a student has to not only understand “probable”, but also learn how to compute a number to attach it with the term and get it right from first principles.

CBSE

How was the UIDAI allowed to get away without qualifying the word “improbable” by attaching a number, when even a school going child attempting a 10th standard mathematics question would be denied marks for a similar answer? More importantly, why did the majority chose not to engage with the “probability” argument at all?

While it is merely baffling that the majority chose not to engage with both the empirical evidence and mathematical formulations that buttress each other, provided by the petitioners, it is stunning that it asserted that a specific scientific statement is true, even when the respondents (Union of india) explicitly said in multiple forums, that it is not true.

And, most importantly, there can be no argument that these issues were not put to the Court. Not only are they on the oral record, but they find explicit acknowledgment in Justice Chandrachud’s dissenting opinion, where the constitutional arguments are grounded in the acknowledgment that biometric authentication is a fallible science.

Conclusion

The Aadhaar project is a biometric technological regime at its heart and mathematical theories and empirical evidence that lie beneath it require a deep engagement to arrive at the correct factual understanding of its perceived failures or success.

When generations of people’s lives are at stake, the least that the majority could have done is to understand the science and mathematics behind biometric de-duplication through careful engagement with the evidence. It is disappointing that it chose to make up its own facts and then believe it.

In terms of the magnitude of error,  “there is no possibility of obtaining duplicate card” comes very close to the church declaring that “The Sun moves around the earth” because it feared the consequences of the scientific truth and could not bring itself to face the simple fact that, its understanding of the world has irrevocably changed.

Scientific facts however do not change or become false, because a constitutional court declares them so, just like the church’s pronouncement did not change the basic fact that “Earth moves around the sun”.

The majority’s refusal to engage and face inconvenient scientific facts is a recurring theme in the Aadhaar judgement and further posts will point out these areas in great detail.

(Editor’s Note: It may be argued that this is attacking a straw-man: nothing in the world is “certain”. The point, however, is that this is how the Majority chooses to frame the issue. And this is no accident: the Majority uses the language of certainty to evade engaging in the hard constitutional enquiries about necessity and proportionality – something that becomes evident when we see how the dissenting opinion engages with these issues. Yes, the Majority could have said that biometric authentication is fallible, but that – all things considered – it is necessary and proportionate in this case. We would then be having a different argument today. But the Majority didn’t say that. It used the language of impossibility (of duplicates) and “unparalleled” accuracy, and shut out the constitutional enquiry on that basis. The Majority judgment, therefore, must stand or fall on the hill that it has chosen to die on.)

The Aadhaar Judgment: A Dissent for the Ages

“Constitutional guarantees cannot be subject to the vicissitudes of technology.” (Chandrachud J., dissenting, paragraph 269)

As we discussed in the last post, the Majority judgment in the Aadhaar Case is premised upon a series of factual assumptions, which are either unsubstantiated, or lifted from a Power-Point presentation given by the UIDAI Chairperson in the Court. The Majority agrees, for instance, that profiling is bad, and surveillance unconstitutional – but finds, on fact, that the Aadhaar framework does not permit either. The Majority agrees that data minimisation is a constitutional principle, but finds, on fact, that Aadhaar does collect minimal data. And the Majority agrees that the legal standard is that of proportionality, but finds that because of its “uniqueness”, biometric authentication successfully targets deserving beneficiaries, and that therefore, is proportionate.

For this reason, while reading Justice Chandrachud’s dissenting opinion, there is a sense that the two judgments disagree not only on legal standards (which they do), but also, on something far more basic: they disagree about the very state of the world within which Aadhaar operates.

Why does this matter? It matters because Judges are entitled to declare the law – and indeed, bring it into being by declaring it – but facts have an independent existence. For example, one may take sides on whether the Majority or Justice Chandrachud is correct in holding that Section 59 of the Aadhaar Act validates past action, while acknowledging that the Majority – by virtue of being the Majority – has laid down the law. However, if the Majority and Justice Chandrachud disagree on the uniqueness of biometrics, or on the existence of exclusion, then – quite simply – one of them is right, and the other one is wrong. And if the Majority is wrong on facts, then serious questions must be asked about the sustainability of that judgment.

Overarching Assumption: The Uniqueness of Biometrics

As we saw, the factual foundation of the Majority Judgment is that biometrics are unique. This foundation is at the heart of the Majority’s decision to uphold Section 7, as well as the mandatory Aadhaar-PAN linkage. And it is with this foundational assumption that Chandrachud J. takes issue. In paragraph 132, he notes that “errors will inevitably occur” (with biometric use). In paragraph 150, he puts the point in a stronger way: “The uniqueness of a fingerprint in forensic science remains an assumption without watertight proof.” Unlike the Majority, he then goes on to substantiate this claim, citing scholarly books (Fn. 154 & para 260) and the text of the Aadhaar Act itself, which envisages updation of biometrics. This becomes crucial in the latter part of the judgment dealing with exclusion, where (as we shall see) both authentication failures and the existence of false positives and false negatives are a crucial reason for his finding of unconstitutionality.

This foundational factual disagreement between the Majority and Justice Chandrachud is important – and virtually determinative – to the outcome of the case. Recall that the Majority elects to pitch its case very high: not merely that a biometric database is good or efficient, but that it is flawless: i.e., there cannot be duplicates. The Majority does this because it makes the rest of the case very easy. If Aadhaar is truly unique, then ipso facto, it efficiently targets beneficiaries (and so, Section 7 is upheld) as well as fake PAN Cards (and so, S. 139AA is upheld); and furthermore, “unproven” stories of exclusion cannot be taken seriously (and, in any event, are being dealt with by a Circular). There is no need to engage in a messy proportionality analysis about whether biometric authentication actually accomplishes what the State claims it does, and whether it is indeed the least restrictive way of accomplishing it. However, by stark contrast, Chandrachud J.’s finding that biometrics can be erroneous – as we shall see – opens his judgment up to a large number of issues: do errors disproportionately affect the most vulnerable? Shouldn’t failure be forestalled, rather than compensated? And so on.

Surveillance

Here again, Chandrachud J.’s disagreement with the Majority starts in factual analysis. Chandrachud J. notes that profiling and surveillance is possible under the existing Aadhaar framework. This is because, in his view, according to Regulation 17, requesting entitles can store biometric information for a temporary period (paragraph 126), that through the IP address, meta data can be used to track location and profile (para 227), that there is the access third-party vendors to the database, and – most crucially – that linking of databases can take place:

The risks which the use of Aadhaar “for any purpose” carries is that when it is linked with different databases (managed by the State or by private entities), the Aadhaar number becomes the central unifying feature that connects the cell phone with geo-location data, one’s presence and movement with a bank account and income tax returns, food and lifestyle consumption with medical records. This starts a “causal link” between information which was usually unconnected and was considered trivial. 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. (paragraph 244)

In addition:

When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos, which allows anyone with access to this information to re-construct a profile of an individual’s life. It must be noted while Section 2(k) of the Aadhaar Act excludes storage of individual information related to race, religion, caste, tribe, ethnicity, language, income or medical history into CIDR, the mandatory linking of Aadhaar with various schemes allows the same result in effect. 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. (paragraph 247)

On every point, therefore, there is a direct factual clash between the Majority and Chandrachud J. Recall that the Majority categorically says that merging of data silos cannot happen, that that is a fundamental reason why profiling and surveillance is impossible. Chandrachud J., on the other hand, makes it clear that the seeding of Aadhaar across databases serves to break the silos. As I had pointed out above, this is not a matter of different legal interpretation, with the Majority’s view being “correct” simply because it is the Majority. Here, one of them is right and one of them is wrong.

Privacy

Chandrachud J.’s disagreement with the Majority on this is legal in character. Recall that the Majority undertakes the proportionality test by diminishing our privacy interest in our bodily characteristics, and devaluing the importance of biometric details (fingerprints or iris scans). By contrast, Chandrachud J. holds that it our privacy interests in our biometric details is high: both from an informational self-determination point of view, as well as from a bodily integrity and physical safety point of view (paragraph 125). In particular, Chandrachud J. avoids two pitfalls that the Majority falls into: that is, mixing up “minimal information (collected)” with “minimal interference with privacy”, and applying the American “reasonable expectation” standard. Ultimately, however, the difference is one of framing: the Majority uses the fact that biometric details are given frequently and for a multiplicity of purposes, to argue that we don’t have a heightened privacy interest in them. For Chandrachud J., however, that is irrelevant: what is relevant is that a “carefully designed” biometric system may nonetheless preserve privacy (such as, for instance, ensuring anonymity), and that therefore, that is the standard we must measure Aadhaar against. (paragraph 127) And within this framework, he finds that the absence of consent within the Act, the extent of information disclosed, the expansive scope of the term “biometrics”, the burden placed upon the individual to update her own biometrics, and lack of access to the record, cumulatively constitute a serious infringement of privacy.

Section 7 and Proportionality 

Chandrachud J. accepts that the Aadhaar Act – and Section 7 – are designed to fulfil a “legitimate State purpose” – that is, making the welfare delivery system better and more effective. For him, however, the Programme fails on the proportionality prong. As he observes:

The test of proportionality stipulates that the nature and extent of the State’s interference with the exercise of a right (in this case, the rights to privacy, dignity, choice, and access to basic entitlements) must be proportionate to the goal it seeks to achieve (in this case, purported plugging of welfare leakage and better targeting). (para 198)

This paragraph reflects three crucial differences in the way that the Majority and Justice Chandrachud approach proportionality in this case. First – as we have seen above – the Majority holds that the invasion of privacy and dignity is minimal (and it doesn’t even consider the issue of choice), thus guaranteeing a very low threshold of justification to the State. Secondly, having made the assumption that biometric authentication is flawless, the Majority cannot – and does not – admit that its use can actually impede access to basic entitlements. In the Majority’s approach, therefore, the question of entitlements comes on the other side of the justificatory ledger (i.e., the State promoting access to entitlements through Aadhaar). And thirdly, the factual assumption of accurate targeting and improvement of welfare delivery drive the Majority into a pre-decided “balancing” between minimal impairment of privacy and significant plugging of welfare leaks. Chandrachud J., however, remains more circumspect: he carefully notes that the plugging of welfare leakage and better targeting is only “purported.”

The word “purported” informs Chandrachud J.’s proportionality analysis. As he notes, this is not a domain where the Court has to be excessively deferential to the State’s assertions. This is especially true because a nation-wide biometric programme is not merely one of those initiatives that applies to a one-time transaction. Rather:

… 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. (paragraph 217)

In this context, the lack of verification mechanisms by UIDAU, no proper exemption handling process (if authentication fails), the lack of accountability mechanism with respect to the UIDAI (para 235), the absence of an overarching regulatory framework, and the vague and unbridled nature of Section 7, which allows it to interpreted in an open-ended way, without checking whether each separate use violates the proportionality standard (paragraph 248), all militate against a finding of proportionality. And the position is sealed when Chandrachud J. observes that:  “the state has failed to demonstrate that a less intrusive measure other than biometric authentication will not subserve its purposes.”

This time as well, the difference between the Majority and the Dissent is purely legal: recall that the Majority had argued that the Petitioners had failed to demonstrate an alternative; Chandrachud J., however, reverses the legal burden: it is for the State to demonstrate that there is no feasible alternative, since it is the State, after all, that is infringing my rights. As should be obvious, in cases where there is no evidence on other side, this finding of burden changes everything.

The Argument from Inequality

Chandrachud J’s acknowledgment that biometric authentication is error-strewn (something that the Majority refuses to acknowledge) leads him to study the exclusion issue carefully (which the Majority dismisses in a line). Exclusion is directly linked with discrimination, because – as he notes – “exclusion as a consequence of biometric devices has a disproportionate impact on the lives of the marginalized and poor.” (para 253) He deals in some detail with the work of Virgnia Eubanks, who – using the concept of the “digital poorhouse” – has demonstrated that the discriminatory effects of technological solutions are inevitably visited upon the most vulnerable. Consequently, Chandrachud J. holds that “the fate of individuals cannot be left to the vulnerabilities of technological algorithms or devices.” (para 262).

He then substantiates this by looking at the Economic Survey of 2016-17, government reports involving pilot projects in Andhra Pradesh, and at the work of grassroots scholars such as Jean Dreze and Reetika Khera, to show that the exclusion percentages have been substantial (paragraphs 263 – 268).  Now recall that the Majority dealt with this issue in a line, noting that the Attorney-General had a made a statement that people would be allowed to use another identification, and that there was also a Circular providing for this. In a following post, I will explain quite how bizarre this approach is, which upholds an unconstitutional statute on the basis of a promise to interpret it fairly; for now, however, Chandrachud J. has an answer himself, when he notes:

Technological error would result in authentication failures. The concerns raised by UIDAI ought to have been resolved before the implementation of the Aadhaar project. Poor connectivity in rural India was a major concern. The majority of the Indian population lives in rural areas. Even a small percentage of error results in a population of crores being affected. Denial of subsidies and benefits to them due to the infirmities of biometric technology is a threat to good governance and social parity. (paragraph 262)

This is a crucial observation. What Chandrachud J. is saying is that once it is established that exclusions will occur – leading to deprivation of rights – then the State bears the burden of first resolving these issues before rolling out the project. Once again, the contrast with the Majority could not be starker. The Majority notes that Aadhaar is an ongoing project, and “glitches” must be ironed out as they present themselves. To this, Chandrachud J. replies: “you cannot be ironing out the glitches when Articles 14 and 21 are at stake.” In other words, people – especially the most vulnerable – cannot be used as experimental subjects for improving the efficiency of technology, as that would violate every constitutional principle in the book:

No failure rate in the provision of social welfare benefits can be regarded as acceptable. Basic entitlements in matters such as foodgrain, can brook no error. To deny food is to lead a family to destitution, malnutrition and even death. (paragraph 263)

There is, of course, a bitter irony here. In the passive euthanasia judgment, it was the Chief Justice who had first articulated this principle, when he asked whether the individual was to be turned into some kind of a guinea pig for an experiment. Unfortunately, it would take only a few months for him to forget, and it would be left to a dissenting opinion to remember.

A Dissent for the Ages: Individual, State, Identity 

Justice Chandrachud’s dissenting judgment recognises what the Aadhaar case was truly about: it was the first time in its history that the Court was called upon to answer serious questions about the interface between technology, the relationship between individual and State, and the Indian Constitution. The judgment is shot through with a keen awareness of this fact. Indeed, in paragraph 3, Chandrachud J. notes that “our decision must address the dialogue between technology and power.”

These are not careless words. The Aadhaar case was all about the relationship between the individual and the State, and how technology was altering – and even potentially inverting – that relationship. It was about how power worked itself through technology, through algorithms, becoming the arbiter of peoples’ rights and entitlements. And it was, at its heart, a question about what our Constitution had to say about that.

This is something that the Majority, in its techno-utopian celebration of greater efficiency and unique identification, misses entirely: the other side of the story, the contrapuntal notes. It is the side that comes across with particular clarity at various points in the dissenting opinion: when Chandrachud J. discusses how unique data sets can lead to “perpetuating of pre-existing inequalities” (paragraph 10), or when he refuses to play-off civil rights and socio-economic rights against one another, or in his attention to how biometric systems are “most aggressively” tried out with welfare recipients (paragraph 120). And it comes across most vividly in a brief discussion about identification and identity, an issue that plagued the hearings throughout. Consider, for example, the dissent’s discussion of how the concepts of “identity” and “identification” are being merged with the advent and technology (and compare, once again, with the Majority’s celebration of a “unique identity”):

Identity includes the right to determine the forms through which identity is expressed and the right not to be identified. That concept is now “flipped” so that identification through identifiers becomes the only form of identity in the time of database governance. This involves a radical transformation in the position of the individual. (para 185)

A finding that immediately leads to the following conclusion:

The submission which has been urged on behalf of the petitioners is that an individual entitled to the protection of the freedoms and liberties guaranteed by Part III of the Constitution must have the ability to assert a choice of the means of identification for proving identity. Requiring an individual to prove identity on the basis of one mode alone will, it is submitted, violate the right of self-determination and free choice. (para 185)

In other words, in an age when identification has subsumed identity, the individual must be granted a choice in the means by which she elects to “identify” herself to the State. It is a simple enough concept, but radical in its application.

They say that Minerva’s Owl takes flight at dusk. And so, you may well ask: what is the point of this dissent, when the Supreme Court spent six years busily allowing Aadhaar to become a fait accompli, and then legitimised it through a Majority opinion anyway? To that, perhaps, there is only one answer: the great cases are always 4 – 1 in favour of the State.

Until the 1 is resurrected. And becomes the pathway for a future that is still struggling to be born.

(The writer assisted Mr. K.V. Viswanathan, senior counsel for one of the Petitioners challenging Aadhaar).