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(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.