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.

2. Are the means used to achieving this aim reasonable or suitable?

3. 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.

4. 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.