Guest Post: The Legality of Aadhaar Seeding for Social Security Purposes

[This is a guest post by Yajat Kumar.]

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A Circular (“The June Circular”) issued by the Employees Provident Fund Organisation (“EPFO”) dated 1^st June, 2021 mandated the seeding of Aadhaar with the Universal Account Number (“UAN”) which is generated under The Employees Provident Fund and Miscellaneous Provisions Act, 1952 (“The EPF Act”). Whenever contributions, under the EPF Act are made in respect of the employees an Electronic Challan-Cum-Receipt (“ECR”) is generated which serves as a proof of deposit of the Provident Fund in their accounts. If the said ECR is not generated, then the employers have to suffer the consequences of non-deposit of dues in the form of damages. So, the onus, directly or indirectly, is upon the employer to make sure their employees’ UAN is seeded with Aadhaar and to further file the ECR for the UAN. The June Circular was issued in pursuance to a notification by the EPFO dated 30^th April, 2021 which put into force section 142 of the Code on Social Security,2020 (“The Code”). While the four Labour Codes are unlikely to be implemented before the next fiscal year, the reasons cited by the EPFO in implementing the section in an isolated manner were “to collect Aadhaar details for the database of beneficiaries under various social security schemes” and the “creation of social security fund for providing comprehensive social security to the unorganized sector.”

The June Circular, however, read along with section 142 of the Code, in using the term “mandatory” for seeding Aadhaar with UAN seems to go contra tothe judgement of K.S. Puttaswamy (Retd) & Anr. v. Union of India & Ors (“Aadhaar 5J”). To this end, I shall be probing the following two questions in this piece- 1) Whether Section 142 can be implemented independent of the Code, and can it inter alia form the basis of seeding of the UAN with Aadhaar? And, 2) Whether the June Circular issued by the EPFO (read along with section 142) is constitutionally valid with respect to the Aadhaar 5J judgement?.

Maintainability of Independent Application of Section 142 of CoSS, 2020

Section 142 of the Code reads as follows-

“142. (1) An employee or unorganised worker or any other person, as the case may be, for— (a) registration as member or beneficiary; or

(b) seeking benefit whether in kind, cash or medical sickness benefit or pension, gratuity or maternity benefit or any other benefit or for withdrawal of fund; or

(c) availing services of career centre; or

(d) receiving any payment or medical attendance as Insured Person himself or for his dependants,

 under this Code or rules, regulations or schemes made or framed thereunder, shall establish his identity or, as the case may be, the identity of his family members or dependants through Aadhaar number and for such purpose the expression “Aadhaar” shall have the meaning as defined in clause (a) of section 2 of the Aadhaar (The Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016:

Provided that any foreigner employee shall obtain and submit Aadhaar number for establishing his identity, as soon as possible, on becoming resident within the meaning of clause (v) of section 2 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.

(2) For the purposes of sub-section (1), the Aadhaar number issued to an individual shall be in accordance with the provisions of section 3 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016.”

At the very outset, a plain reading of the proviso (d) of the subsection 1 of the section, “under this Code or rules, regulations or schemes made or framed thereunder” makes it clear that the section seeks to make Aadhaar imperative to establish the identity of the concerned member and the identity of his/her family members or dependents. This is only possible, under the proviso’s pursuance, once the Code is made applicable on the whole. Also, on applying the Literal Rule of Interpretation, it is pretty much self-explanatory that the term “Under this Code” envisages the provisions of the section to operate only when the Code has been implemented and not independent of it since the section’s very existence depends upon the applicability of the Code.

Secondly, a Gazette notification dated 3^rd May, 2021 enumerates that the section has been made effective in pursuance to the provisions under sub-section 3 of section 1 of the Code read along with section 14 of The General Clauses Act, 1897 (“The GCA”). Section 1(3) of the Code provides for bringing into effect different provisions of the Code on different dates while being facilitated, with respect to Section 142, by section 14 of The GCA which, in turn, provides that if a power is conferred by a Central act or regulation, then that power can be exercised from time to time, unless there is a different intention on the part of the legislature. While this provision does seem to offer a plausible explanation for the above lacuna, but the Supreme Court (SC) in the case of Sri Nasiruddin vs State Transport Appellate Tribunal has held that section 14 of The GCA cannot have any application if a different intention, other than the one currently assumed, appears in any other part of the statute. Here, as discussed above, clause (d) of sub-section one envisages the seeding of Aadhaar to be done “under the code or rules, regulations or schemes made or framed thereunder” and not as an excluded provision which would, inextricably, have an application without other interlinked provisions such as section 113 of the Code (in this section, the term “Aadhaar” for the purpose of registration of unorganized, gig or platform workers is derived from section 142 only). This, clearly, does not appear to be the intention of the legislature.

Further, on a simple reading of Section 142, no responsibility is fixed upon the employer to seed the Aadhaar with UAN but rather upon the employees/ beneficiaries for taking benefits under the provisions of the Code, and not under the provisions of the EPF Act. Ergo, while issuing the June Circular, the EPFO has completely misread Section 142 of the Code.

If section 142 is allowed to be constructed vis-à-vis the convoluted language of the aforementioned circular, it would absolutely deflect the purpose of the code. This discrepancy not only makes this section obsolete, but also in contravention to the very objective of “extending social security to all employees and workers either in the organised or unorganised sector”.  Cues, in this case regard, can be taking from the writings of Maxwell who has talked in length about the consonance between the object and the law- “When a law is non-sequitur to its intent, it is liable to be struck down” (Maxwell on Interpretation of Statutes, 11^th Edn, p. 221). One can also find a similar obiter in A. Ram Mohan vs State of Madras, “When the language is plain and unambiguous and admits of only one meaning, no question of construction of a statute arises, for the Act speaks for itself”(para 22). Hence, if the section has to be implemented it can only come into force with the Code (much less the rules) and cannot exist in vacuum.

Checking the conduciveness of Mandatory Seeding against the tests laid down under the Aadhar 5J judgement

As argued above, the interim enforcement of section 142 sans the Code would not be maintainable in the court of law, but even if- for argument’s sake the above legal caisson is set aside, there still exists the bigger question of constitutionality of the section (read along with the June Circular) under the Aadhaar 5J judgement. Now, I will look into the validity of mandatory Aadhar seeding with respect to Employees Provident Fund and Pension Scheme. Even though the same UAN number would be used to access both of the aforementioned schemes, but it is necessary to look at both of them through a differential perspective in accordance with the tests laid down under The Aadhaar 5J Judgement.

First Point of Contention

The contours surrounding the applicability of linking of Aadhaar with EPF has seen a sea-change over the years. Initially, in K.S Puttaswamy & Anr. v. UOI & Ors, (2015), The SC had observed that “The Aadhaar card Scheme is purely voluntary and it cannot be made mandatory till the matter is finally decided by this court one way or the other.” In pursuance of this, major modifications were made by the court in Aadhaar 5J. It observed-

“No doubt, the government cannot take umbrage under the aforesaid provision to enlarge the scope of subsidies, services and benefits. ‘Benefits’ should be such which are in the nature of welfare schemes for which resources are to be drawn from the Consolidated Fund of India…

We also make it clear that a benefit which is earned by an individual (for example, pension by a government employee) cannot be covered under Section 7 of the Act, as it is the right of the individual to receive such benefit” (paras 321-322)

Now, Section 7 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (“The Aadhaar Act”) provides that individuals should produce their Aadhaar card or Aadhaar enrollment number for the purpose of accessing social services, subsidies, benefits etc., the funds of which are drawn from the Consolidated Fund of India. Here, the court examined and clarified the ambit of the term ‘benefits’, along with ‘services’ under section 7 of the Aadhaar Act. It observed that the term ‘Service’ which, ordinarily includes provisions and facilities provided to an individual, should not be constructed in such a manner that a person is denied a benefit on non- production of the Aadhaar which he/she is otherwise entitled to (see para 322). So, ‘Benefits’ should include any, or all social welfare schemes whose funds are extracted from the Consolidated Fund of India (this being read ejusdem generis with ‘subsidies’).

Section 6 of The EPF Act says that the contributions payable by the employee is 12 per cent of basic wages (which is inclusive of dearness and retaining allowances). An equal contribution is remitted by the employer as well. It is essential to note that the expenditure paid thereof is not, in any way, taken from the Consolidated Fund of India or any other governmental purse and is a benefit which is rightfully earned by the employer himself. Likewise, the benefits provided under sub-clauses 1(b) and 1(c) of Section 142 such as pension, gratuity, maternity leave; and any payment or medical attendance for an insured individual or his dependents- are also not covered under the expenses withdrawn/retrieved under The Consolidated Fund.  Hence, the June Circular read with section 142 of the Code for these purposes has flouted the court’s guideline concerning the implementation of the Aadhar Scheme and is squarely violative of not only the principles of natural justice, but also of articles 14, 19(1)(g), 21 and 300A of the Indian Constitution.

It is also pertinent to note that under The Atmanirbhar Bharat Rojgar Yojana (“ABRY”), the Central Government will pay the PF share of employer and employees who lost their jobs due to Covid-19 and were called back to small scale jobs in the formal sector (registered under EPFO) till 2022. While this is a commendable step, it will again, seamlessly require mandatory Aadhaar-UAN linkage. Reference here can be taken under the case of Binoy Viswam vs Union of India and Ors, where the court had to deal with a similar issue of mandatory seeding of Aadhaar with PAN number under section 139AA of the Income Tax Act,1961 for filing income tax returns. While holding up the validity of the same, it observed that since all income tax assesses constitute one class only so they are to be treated alike. The ratio of this case, however, will not be applicable here because the fact remains that a separate nexus cannot be created by the government only for some individuals under a ‘temporary’ scheme while excluding others not eligible under the aforesaid. There cannot be any differential treatment solely on the basis of extending ‘benefits’ to a class of people who will be seeding Aadhaar with their UAN solely because they are a part of a scheme which is due to tentatively expire next year. Article 14 of Indian Constitution forbids class legislation, but does not prohibit reasonable classification for the purpose of legislation. Government cannot create ‘a class-within-a class’ under the garb of denying benefits to the deserving working class. Hence, the government cannot impose Aadhaar on the beneficiaries of ABRY under the ‘consolidated fund’ argument.

Second Point of Contention

The pension which an employee receives under The Employee’s Pension Scheme, 1995 is mostly made up of contributions by the employer and the employee, but some portion (1.16 percent) is also remitted by the central government. While the amount is surely derived from the Consolidated Fund of India and falls in consonance with this line of reasoning (as contained in the judgement), Aadhaar 5J also talks about a much bigger purpose of “plugging the leakages and ensure that fruits of welfare schemes reach the targeted population, for whom such schemes are actually meant” and also highlights that the “Government seems to be sincere in its efforts to ensure that no such exclusion takes place and in those cases where an individual who is rightfully entitled to benefits under the scheme is not denied such a benefit merely because of failure of authentication.”(see para 318)

This was opined because, after all, such laws are social security measures- made primarily for the benefit of workmen. With that said, a huge chunk of workers in our country do not even have an Aadhaar Card because of which many employers are being pressured to not employ them – and this does not even consider the number of migrant workers who are unable to arrange proper documents for the purpose of seeding, or the mismatch between the Aadhaar data and UAN data of the employees which leads to mechanical rejection by the  Unique Identification Authority of India’s(“UIDAI”) software (which does not even generate OTP most of the time!). This may deprive the employees from availing benefits under schemes such as ARBY and insurance linked-aid under Employees’ Deposit-Linked Insurance Scheme, 1976 (EDLI).

Consequently, when the EPF contributions of such members are deposited late, the employer will be penalized for late payment of contribution, and interest and damages will be levied.  Since EPF contribution is not paid in time for such members, employer cannot get necessary tax benefit because of late payment. Imposing arbitrary deadlines and the stringency on part of the EPFO to not create any other means of depositing the dues except the UIDAI portal is, only for the sake of contributing a minute token-sized percentage (1.16%) of contribution in the pension fund, is unwarranted (especially when there not fault on part of both- the employer and the employee). It is therefore, in pursuance to the spirit of Aadhaar 5J, it is imperative on the part of the EPFO to create alternate arrangements for vitiating the hardships faced by the vulnerable workforce during these trying times.

Conclusion

The Delhi High Court(HC) in the case of Association of Industries and Institutions v Union of India has granted extension with regard to the employees whose seeding exercise is yet to begin till 30^th November, 2021 and has directed that no coercive action is to be taken against the employees with respect to employment and benefits under ABRY and against the employers with respect to sections 14B(damages) and 7Q(interest) under The EPF Act. The Delhi HC is yet to decide the validity of the June circular against the Aadhar 5J judgement. Whatever be the final judgement of the court, it is surely set to alter the contours of UIDAI verification and social security jurisprudence of India.

Coronavirus and the Constitution – XXI: The Mandatory Imposition of the Aarogya Setu App

The extension of the “nationwide lockdown” by another two weeks has brought with it a slew of further directions under the National Disaster Management Act. Many of these directions exacerbate the problems pointed out in previous posts. For example, unlike previous directions, this one actually does impose a physical curfew (between 7PM and 7AM), and directs local authorities to pass necessary orders implementing it. This particular direction lies at the intersection of rule by executive decree and the undermining of federalism, as discussed previously. In this post, however, I want to briefly consider Guideline 15 of Annexure 1, which mandates the use of the government’s contact tracing app – Aarogya Setu – for all private and public employees, and obligates employers to ensure 100% coverage.

To those who have followed the many twists and turns of the Aadhaar story, this metamorphosis from “voluntary” to “voluntary-mandatory” to “effectively mandatory” will have a familiar ring – the pandemic probably just accelerated the pace of transformation from a few years to a few weeks. The mandatory imposition of Aarogya Setu through executive decree, however, suffers from serious legal problems, discussed below.

The Absence of Anchoring Legislation

As pointed out repeatedly on this blog, the legal framework for the government’s pandemic management strategy has been the National Disaster Management Act, which has an umbrella clause permitting the issuance of guidelines and directions aimed at addressing disasters. Previously on this blog, we have discussed the separation of powers and other democratic problems that come with using vague enabling legislation to anchor a wide-reaching executive response. When it comes to the infringing of rights, however, the problem is even more acute: Part III of the Constitution requires that even before we get to the discussion of whether a rights violation is justified or not, there must exist a law that authorises it. Any such law has to be specific and explicit with respect to the rights that it seeks to infringe, the bases of infringement, the procedural safeguards that it establishes, and so on.

The NDMA cannot be such a law, because it says absolutely nothing about the circumstances, manner, and limitations under which the government is authorised to limit or infringe civil rights (in this case, the right to privacy). The enabling clauses do not help, because – as pointed out above – they are generic enough so as to permit just about any executive decree that (the executive believes) is required to tackle the disaster. If the NDMA was indeed accepted as the basis, then this would effectively subvert the legality requirement entirely and across the board: there could, hypothetically, be one single umbrella legislation that stipulates that “the government may do anything that it believes is reasonable to achieve the public interest” , and do away with any further need for lawmaking in toto. This, however, is the very definition of rule by executive, instead of the rule by and of law.

It should be noted that the proposition I am advancing here is a very basic one. Last week, for example, the High Court of Kerala refused to allow the government to cut salaries without specific legislation authorising it (the Court correctly observed that the existing provisions of the Epidemics Act and the Kerala Covid-19 Ordinance were far too generic to authorise such a step). We shall discuss the judgment of the Kerala High Court in a subsequent post, but for now, suffice it to say that this is not just a basic proposition under Indian law, but a basic proposition everywhere. The Israeli High Court – not exactly known for being a hotbed of bleeding-heart liberal jurisprudence – held a few days ago that the Shin Bet could not engage in surveillance without authorising legislation. A few months ago, the High Court of Kenya held that GPS Coordinates and DNA samples could not be collected under cover of a general law, but – at the very least – would require “anchoring legislation” to do so.

The requirement of specific legislation is not a mere procedural quibble, but a crucial constitutional point. One, of course, is the separation of powers issue, which we have discussed before: if the State is going to mandate an intrusive, data-collecting app upon its citizens, then the least that ought to be done is that it be authorised by the citizens’ elected representatives, in Parliament. Equally importantly, however, a hypothetical “Aarogya Setu law” will necessarily have to demonstrate constitutional compliance with respect to data protection principles. A good example of this – again – is the history of Aadhaar: once it became clear to the government that it actually had to pass an Aadhaar Act, the accompanying infrastructure – including limitations upon the use of Aadhaar – also had to be considered. Writing out these provision in law also enabled an informed challenge in Court, where at least a part of the Act was struck down for being unconstitutional (I need not go over that again here). Blithely mandating Aarogya Setu in one sentence through an executive decree tears the constitutional architecture to shreds.

The Proportionality Test(s)

Given the government’s penchant for Ordinances (the Kerala government has, for example, issued an ordinance to get around the High Court’s salaries judgment), the requirement of legislation is unlikely to present an effective check upon executive abuse. That, however, makes it important to highlight that there exist serious substantive constitutional concerns with the mandatory use of the Aarogya Setu app.

As is well known, the proportionality standard for adjudicating whether a violation of the right to privacy is justified or not has four prongs: legality (requirement of a law, with a legitimate purpose), suitability (the government’s action must be suitable for addressing the problem, i.e., there must be a rational relationship between means and ends), necessity (i.e., it must be the least restrictive alternative), and proportionality stricto sensu (there must be a balance between the extent to which rights are infringed and the State’s legitimate purpose).

There is, by now, extensive literature on the question of the very effectiveness of contact-tracing apps to fight a pandemic such as Covid-19. As this Brookings Paper shows, (a) contact tracing is effective where there exists large-scale testing capacity and less spread (the first condition certainly does not exist in India today); (b) there is a high risk of false positives and false negatives, something that gets worse as the population size increases (recent examples in India bear testimony to this); (c) the absence of complete smartphone penetration can defeat the purpose (particularly true for India) (the authors also point out other risks, such as social stigmatisation). It is, therefore, an open question whether the second limb of the proportionality test – suitability/rationality – is satisfied.

The problem grows more severe when we come to the necessity prong (discussed previously on this blog as well). The data collection practices of the Aarogya Setu app – and how they fall short of constitutional standards – have already been discussed extensively (see here, here, here, and here). Now, it is not the purpose of this post to engage in a detailed technical discussion about whether the Aarogya Setu app complies with the third limb of the proportionality standard or not (much of that work may be accessed in the links above). However, there is a broader legal point that needs to be noted. This is the issue of burden: it is well-established under Indian constitutional jurisprudence – most recently in the Aadhaar judgment – that once a prima facie violation of privacy has been demonstrated, the burden of justification (under the proportionality standard) shifts to the State. In other words, it is for the State to show that the suitability and necessity prong of the proportionality standard are satisfied. A necessary corollary of this is that as far as the suitability prong goes, the State cannot mandate the use of a privacy infringing app before it is first demonstrably established that a means-ends relationship actually exists. Thus, if – as the Brookings analysis shows – there is a non-trivial likelihood that the app in question cannot achieve the very (legitimate) purpose that it is designed for, it cannot be made mandatory.

Secondly, as far as the necessity prong goes, it creates a constitutional obligation upon the State to be transparent about the basis for choosing this app, designed in this way. Were less intrusive alternatives considered (see the IFF working paper linked above)? If so, were they found non-suitable for the goal? If not, why were they rejected? And even if not, why is there not a mandatory sunset clause here? Once again, this is not a radical legal proposition: in the Aadhaar judgment, the mandatory linking of bank accounts with Aadhaar was struck down precisely on the basis that there existed less restrictive alternatives, and that the government had comprehensively failed to provide any reasons why they had not been considered. It is fair to say that if the government cannot even show why it has chosen a more intrusive data collecting app over a less intrusive alternative (that exists), then it is in no sense a constitutionally justified decision.

Conclusion

The government directive mandating Aarogya Setu for all public and private employees suffers from serious legal flaws. In the absence of a specific anchoring legislation, it fails the first limb of the proportionality test. And on more substantive grounds, the government bears the burden of showing that the design of the app satisfies both the suitability and the necessity prongs of the test – a burden that, thus far, remains undischarged (indeed, going by blithe ministerial statements about how the app might continue to be in use for two years, there seems to be very little appetite in the government to even attempt to discharge that burden). There would, therefore, appear to be excellent legal grounds for a challenge to the NDMA Direction; of course, the prospect of any such challenge succeeding at a time when the Court appears to have withdrawn itself from its task of rights adjudication, is another matter.

Notes From a Foreign Field: The Kenyan High Court’s Judgment on the National Biometric ID System

Earlier this week, the High Court of Kenya delivered a landmark judgment on the constitutional validity of Kenya’s biometric identification system (the National Integrated Identity Management System (NIIMS)/Huduma Namba). In short, the High Court held that (a) the consensual collection of Kenyans’ biometric details for the purpose of identification and verification was constitutionally valid; (b) however, the collection of DNA and GPS details was unconstitutional; and (c) NIIMS itself would have to be halted until the Kenyan government implemented data protection legislation, as well as framed regulations in order to safeguard the data collected.

With this judgment, the Kenyan High Court becomes the third constitutional court in the world (after India and Jamaica) to rule on the constitutionality of centralised biometric ID systems. Before we analyse the judgment, two things must be noted. First, this judgment was delivered by a first-instance Court, following a formal trial and the taking of evidence. There are two further appeals within the Kenyan judicial system and therefore, this is unlikely to be the last word on the subject. And secondly, as indicated above and as will be seen below, the High Court’s decision – at least in part – is a conditional one, where the (legal) future of the NIIMS is expressly made dependant on what action the government will take. Thus, there remain a significant number of issues that remain open for (inevitable) litigation, even after the High Court’s judgment.

The Issues

National biometric identification systems – and constitutional challenges to them – are, by now, familiar. Indian readers will immediately recall Aadhaar (although, funnily – as the judgment records – Kenyan government lawyers went to some extent to distinguish NIIMS from Aadhaar). Kenya’s NIIMS bears some similarities with Aadhaar, in that it too is a centralised, biometric identification system, that its purpose is to grant a “unique identification number” to registered purpose, and then to use this for the purposes of future verification of identification (see paragraph 3 of the judgment). There are also some differences: NIIMS does not, at this point, appear to have a procedure for authentication of transactions (the heart of Aadhaar); unlike Aadhaar, its use is (so far) open-ended, in that it is not specified that it will be required for a set of purposes, such as subsidies, tax-paying, and so on; the legal framework for NIIMS explicitly envisages “harmonising” of information in different existing databases; and – until the Court struck it down – NIIMS aimed to collect DNA and GPS details.

These differences notwithstanding, as in the case of India as well as Jamaica, the constitutional challenge took a similar form. Apart from a number of procedural issues that we shall not discuss in this post, there were two core issues: privacy/surveillance/data protection on the one hand, and exclusion/equality/discrimination, on the other.

Privacy, Surveillance, and Data Protection: The Analysis

The High Court’s analysis of the privacy issues began at paragraph 705, where it framed the core issues for consideration. As we have discussed previously on this blog, for clarity of understanding, it is helpful do divide the issues into three distinct phases (although there is, of course, overlap between them): data collection (Phase I), data storage (Phase II), and data use (Phase III). It can then be asked: is there a violation of rights at each stage, and if so, whether it is unconstitutional.

Data Collection

In summary – and apart from DNA and GPS collection, which the Court found disproportionately intrusive per se, and struck it down – it was held that (a) collection of biometric data for the purposes of identification was valid, but that its storage or use without an implemented data protection legislation was unconstitutional. The government, thus, was found in breach of its constitutional obligations with respect to Phases II and III, and the project was ordered to be halted until – and unless – the government complied.

It is important to note, however, that the validity of data collection was upheld on the premise that it had been done consensually (paragraph 765). This was the government’s case, and the Court held that the petitioners had not sufficiently established that the data had been taken under compulsion. Interestingly, the Court had another opportunity to rule on whether making enrolment into NIIMS mandatory in order to access entitlements or services would breach the Constitution later in the judgment, while assessing the equality challenge. There, again, it did not issue a finding on the subject. Consequently, while the Court found that (a) there was a strong privacy interest that individuals head in their biometric information (paragraph 760), but that (b) collection of biometric data for the purposes of identification was valid and proportionate, the question of whether compelled collection of biometric details for the same purpose violated the Constitution, was left open. This, of course, raises important issues in its own right, such as the principle of technological self-determination, which grants to individuals the choice of whether and to what extent they will engage with pervasive technological systems, and more specifically, provides them with a choice in how they will choose to identify themselves to the government.

Data Storage and Use

This brings us to the second and third questions: that of data storage and use, or, in simple terms, the actual working of the NIIMS (paragraphs 772 & 773). Once again, for the sake of conceptual clarity, we can divide the challenges into three broad heads. First, there was a foundational challenge to the design of the system itself; as Petitioners’ witness, Anand Venkatanaraynan, pointed out during his evidence, “the law cannot fix what technology has broken.” It was argued, therefore, that the technical architecture of NIIMS – in particular, the decision to have a centralised system – violated constitutional rights. Secondly, there was a more concrete challenge to the legal design: it was argued that NIIMS’ legal framework was open-ended and did not specify the uses that it would be put to. This, therefore, violated the principle of purpose limitation. And thirdly, of course, there was the direct and specific challenge to the functioning of NIIMS in the absence of any data protection framework.

How did the Court answer these three questions? On the first, it held that the design of the system was not subject to judicial review, and therefore, ventured no opinion on it. On the second issue, it held that purpose limitation was indeed built into NIIMS’ legal framework: the purpose of data collection was identification and verification of individuals, and that was why the biometric data had been picked. And on the third, issue, the Court did indeed hold that the absence of a data protection framework made the project unconstitutional (indeed, the Court rapped the government for going forward with the project “in a rush”).

In this context, after the initial hearings had been concluded, the Kenyan Parliament had indeed passed a Data Protection Act. The Court took judicial notice of the Act, and observed that its provisions were “broadly” in line with data protection best practices (the Court sourced these from the OECD) (paragraph 852). Notably, however, that wasn’t enough for the Court: it insisted that until the DPA 2019 was actually implemented on the ground – that is, the Data Protection Authority was established, started functioning, and so on – the project couldn’t go ahead. It also held that until specific statutory regulations were enacted dealing with storage and sharing of data (it cited the Aadhaar Regulations for an example of how this could be done), the project would be halted.

I shall come back to points (a) and (b) later, as I feel that – with respect – the Court’s analysis on both counts was flawed. On point (c), however, two things must be noted: the first is the stark difference between the Kenyan High Court’s judgment, and the Indian Supreme Court’s Aadhaar Judgment. Recall that a “Data Protection Law” was promised by the government as far back as May 2017, even before Puttaswamy-I (privacy) was decided. In both Puttaswamy I (privacy) and II (Aadhaar), the Supreme Court took note of the government’s promises – but to this day, we do not have a Data Protection Act in India (despite Aadhaar now entering its tenth year). By expressly halting NIIMS until the Data Protection Act was implemented (note: not just “enacted”), the Kenyan High Court ensured that there would be no repeat of such bait-and-switch tactics. That said, however, there is a second point: while the Court did observe that the DPA broadly conformed to constitutional standards, a quick look at its provisions suggests that there are some concerning aspects to it. For example, the Kenyan DPA does not require the proportionality test to be satisfied in cases of non-consensual data processing, as long as “public interest” can be shown. Of course, the constitutional validity of the DPA was not itself before the High Court, and therefore, it did not return any detailed findings on the issue. Presumably now, however, if the Kenyan government implements the DPA and then goes ahead with NIIMS, the DPA itself will become the subject of constitutional litigation sooner rather than later.

Equality and Non-Discrimination: The Analysis

In a somewhat disappointing outcome, the High Court held that the challenges on grounds of equality and non-discrimination did not succeed. These challenges had been brought by groups representing Kenya’s Nubian population, which had been historically subjected to exclusion and discrimination – including discrimination in access to IDs. The High Court found that the NIIMS framework was neutrally worded, and did not impose any additional onerous requirements on Nubians as far as access to documentation was concerned. And on the issue of exclusion in case NIIMS enrolment was made mandatory for access to government services, the Court noted – in somewhat anodyne terms – that while exclusion was a matter of concern, there was no going back to the paper age; consequently, issues of exclusion would have to be tackled through “appropriate regulatory mechanisms”, but that was not adequate ground for holding NIIMS itself unconstitutional.

Perhaps the Court here was hampered by the lack of direct evidence of exclusion, as – unlike Section 7 of the Aadhaar Act – NIIMS is not at present mandatory for accessing entitlements or government subsidies. That said, with respect, the issues of equality and non-discrimination are more nuanced and layered than the Court gave credit for, and in due course, this issue will – hopefully – be revisited.

Design and Purpose Limitation: Two Flaws

While many parts of the High Court’s judgment are persuasive and strongly reasoned (as indicated above), there are two areas where, with respect, the Court got it wrong, in my view. I discuss these below.

Design

The first is the Court’s refusal to go into the question of the design of NIIMS (paragraphs 875, 876, and 882). The Court’s hesitation is entirely understandable: this is a technical issue, and the judiciary does not necessarily have the expertise to rule on technology. That, however, is neither here nor there: expert evidence was led on both sides, and the Court records the evidence of the witnesses with great facility.

More importantly, however, the Court cannot evade addressing questions of design, because when you have technological system like India’s Aadhaar or Kenya’s NIIMS, design and fundamental rights are inextricably bound up with each other (a point made by Chandrachud J. in his dissenting judgment in Aadhaar). This was also a point I highlighted a little earlier, while examining the Hague District Court’s judgment on SyRI: the choices that system designers make at the time of design have a direct impact upon how and to what extent the system, in its final form, will impact civil rights. For example, a centralised biometric identification system allows for seeding and profiling in a way that a decentralised system (Estonia’s example was specifically taken) does not. This was, of course, argued by petitioners in the Aadhaar case as well, where smart cards were put forward as a less intrusive alternative to the centralised database (as we know, the Supreme Court dodged the issue there as well, by pretending that it was never argued).

Why is this important? This is important because under the proportionality standard (applicable in both India and Kenya), the State is required to select – out of a range of choices open to it – the method that will infringe rights to the least degree, in pursuit of its goals (the “necessity” step). Thus, if I – as the system designer – have before me two design choices (say, centralised and decentralised), and I choose the one that enables or facilitates a greater degree of rights violations, then at the moment at which the State approves that design choice, it violates the proportionality standard.

Now of course, a Court may find that the choice of a centralised system does not violate proportionality. The point, however, is that a Court cannot avoid engaging with – and answering – that question. To do so is to implicitly endorse the State’s choice of design, and, by implication, take design questions out of the purview of constitutional reasoning altogether. Therefore, when the High Court itself noted just after declaring that it would not be looking at design, that it would be “confining” itself with issues of “privacy and data protection” (paragraph 876), it necessarily followed from that that it would have to deal with issues of design as well: because it could not deal with privacy and data protection without factoring in how the choice of design impacted both issues. In such a situation, to abstain would amount to an abdication of the judicial role.

Purpose Limitation

Secondly, it is respectfully submitted that the Court misapplied the requirement of purpose limitation. To put it very simply, purpose limitation – in the context of data protection – requires that information collected be used only for the purpose for which it is specified, and nothing beyond. Petitioners had argued that as NIIMS was entirely open-ended, and did not specify what the information was going to be used for, purpose limitation had been violated. To this the Court responded that the purpose was “verification”, and therefore, there was no violation (paragraph 787).

This, however, is flawed. Let me explain with the help of a hypothetical. Suppose I am a police officer, and I go to the Magistrate for a warrant to search a specific house. The Magistrate asks me, ‘what is your purpose in searching this house?’ I answer: ‘to find out what is inside.’ If the Magistrate has any sense, he will refuse the warrant. The point is simple: if “purpose” is defined in the very terms of the activity itself, then all you get is a tautology. ‘Why have you jailed this person?’ ‘To deprive them of liberty.’ ‘Why are you collecting identifiable biometric data?’ ‘To identify people.’ etc.

Purpose limitation, therefore, is not satisfied by holding that identifying data is being collected with the purpose of identifying people: the correct question is what are people being identified for. In the Indian context, for instance, there were a set of defined purposes for which Aadhaar was supposed to be used as an identifier, that were set out in legislation (the efficacy of that is something I will not get into here): accessing government subsidies, banking, buying a SIM card, and paying taxes. When we look at it this way, we also see another reason why purpose limitation is important: there needs to be an opportunity to challenge the collection and use of biometric data with respect to the specific purpose that it is being put to. In the Aadhaar case, for example, the Supreme Court found that it was proportionate for accessing subsidies and paying tax, but disproportionate for buying SIM Cards and opening bank accounts. A general, open-ended “purpose” of identification (as is set out in the NIIMS statutory framework) would have made these specific challenges impossible.

The “purpose”, therefore, has to be set out in concrete terms: why, specifically, is this data being collected, and what specific use is it going to be put to? With respect, the High Court’s framing of the issue betrayed the very assumptions that would lead it to the wrong answers.

Conclusion

The judgment of the High Court of Kenya provides us with a strong and well-reasoned analysis of the NIIMS framework, and has some important findings: in particular, on the strong privacy interests in biometric data, as well as the necessity to implement data protection laws before taking on a nation-wide data collection exercise. That said, on issues of design and purpose limitation, the High Court’s conclusions may need reconsideration. And on a third set of issues (the data protection framework itself), the field remains open. What is certain is that this is only the first salvo in a long struggle, and the progress of this case through the Kenyan courts will be fascinating to watch.

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(Disclaimer: The author provided research assistance to some of the petitioners in this case).

Revisiting the Aadhaar Judgment

[Editorial Note: Justice is an indivisible concept. We cannot, therefore, discuss contemporary Supreme Court judgments without also acknowledging the Court’s failure – at an institutional level – to do justice in the case involving sexual harassment allegations against the Chief Justice. This editorial caveat will remain in place for all future posts on this blog dealing with the Supreme Court, until there is a material change in circumstances.]

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It has been more than a year since the Supreme Court’s judgment in  K.S. Puttaswamy v Union of India (II) [“the Aadhaar Judgment”], which was delivered on September 26, 2019. The intervening period has seen some legislative developments – for example, resurrecting the use of the Aadhaar database by private parties, which had been struck down by the Court. It has seen the promise of fresh laws (such as the Data Protection Act, which – it is rumoured – will be placed before Parliament in the winter session). It has also seen the proposed extension of the Aadhaar programme (for example, mandatory linking of voter IDs), as well as other legislative proposals involving the collection and use of personal data (facial recognition systems, DNA profiling, and so on).

It is therefore important to revisit the Aadhaar Judgment, and determine what, precisely, the Supreme Court held in that case. While the judgment is widely known for having upheld the constitutionality of the Aadhaar programme while also limiting its scope in certain important respects, it was also the first time the Supreme Court dealt with the intersection of contemporary data collection, storage, and use practices, and fundamental rights. The principles that emerge out of that discussion, therefore, have a significance that goes beyond the specific holding in that case.

Overview 

To understand clearly what is at issue, let us begin with certain conceptual distinctions. The Aadhaar Judgment involved three levels of analyses: (i) an analysis of facts involving the Aadhaar programme; (ii) an analysis of applicable legal and conceptual standards; (iii) and an application of those standards to the facts (in order to determine whether and to what extent the Aadhaar programme passed constitutional muster). On this blog, in the aftermath of the judgment, a group of us analysed (i) and (iii) in some detail, and criticised the Court on both counts. The Court’s decision to uphold the Aadhaar programme, we argued, was premised on a wrong understanding of facts, and a wrong application of legal standards to those wrongly-determined facts. In this post, I intend to bracket those two questions, and complete the analysis be examining issue (ii) in some detail: i.e., the legal standards themselves.

I will argue that if we read the Aadhaar Judgment along with the nine-judge bench decision that upheld privacy as a fundamental right in K.S. Puttaswamy v Union of India (I) [“the Privacy Judgment”], certain important principles emerge (and on these principles, both the majority and Chandrachud J.’s dissenting opinion were in broad agreement). In summary, the Supreme Court held that (i) the collection, storage, and use of data in a manner that enables profiling is unconstitutional, (ii) data minimization, purpose limitation, and limited data retention are integral to any legislation or executive act involving data collection; (iii) use by private parties of the Aadhaar database is forbidden; and (iv) in testing the constitutionality of any specific measure that infringes the right to privacy/involves data collection and processing, the proportionality standard is applicable. This standard places an evidentiary burden upon the government to justify both the rationality of the measure, as well as its necessity (i.e., no alternative measures that infringe rights to a lesser degree are available).

The Role of Facts and Law

To understand the holding of the Supreme Court in the Aadhaar Judgment, it is important to begin with the main grounds of challenge. As indicated above, the Aadhaar challenge involved a set of legal claims, based upon a set of factual assertions. Relevant for our purposes here were the contentions that (i) Aadhaar enabled a surveillance State by allowing the government to track individual transactions through the authentication mechanism, (ii) Aadhaar enabled profiling by allowing the merging of data silos, (iii) the data collection was excessive and breached the right to privacy, (iv) Section 57, which private parties’ access to the database, breached the principle of purpose limitation, and also enabled commercial surveillance.

It is of vital importance to note that the Aadhaar Judgment rejected none of the petitioners’ legal claims; rather, to the extent that the Court found against the Petitioners, it did so because it disagreed with their factual arguments, while agreeing with the legal claims (and it was those findings that we criticised last year on this blog). In other words (to take one example), the Court found that the Aadhaar programme did not allow for the merging of data silos; however, it becomes clear from a reading of the judgment that had it been the case that the merging of data silos was allowed, the Court’s conclusion would also have been different.

Surveillance

So: on the first contention (surveillance), the Court found on facts that, among other factors, the legal prohibitions upon the sharing and disclosure of core biometric data, sharing of e-KYC data only with user consent, no transmission of identity information back to the Requesting Entity, and the retention of authentication logs only for a short period, precluded the possibility of State surveillance. In addition, the Court found on facts that the merging of data silos was prohibited, the data collection at the time of enrollment was minimal (fingerprints and iris), and the Authority was purpose blind. Consequently, the Court specifically held that “we are of the view that it is very difficult to create profile of a person simply on the basis of biometric and demographic information stored in CIDR.”

Data Protection and Privacy: Principles of Data Minimisation, Purpose Limitation, and Safeguards

On the issue of data protection and privacy, the Court specifically observed that “the crucial requirements, which are indicative of the principles for data protection that India adheres to, inter alia include… information collected shall be used for the purpose for which it has been collected [“purpose limitation”]… Body corporate or any person on its behalf shall, prior to the collection of information, including sensitive personal data or information, provide an option to the provider of the information to not to provide the data or information sought to be collected … Disclosure of sensitive personal data or information by body corporate to any third party shall require prior permission from the provider of such information, who has provided such information under lawful contract or otherwise, unless such disclosure has been agreed to in the contract between the body corporate and provider of information, or where the disclosure is necessary for compliance of a legal obligation.” (paragraph 166)

In this context, the Court’s discussion of case law from the European Union was particularly illuminating. The Court discussed judgments such as Marper, where the storage of DNA profiles had been struck down because of their “blanket and indiscriminate nature” (paragraph 178) (in particular, failing to distinguish between suspects and convicts); Digital Ireland, where an EU Directive that enabled profiling without any temporal or spatial limits; Tele2, where metadata collection was struck down because it violated the data protection principles referred to above (again, it was indiscriminate in nature, and affected individuals without any probable cause of suspicion). The Court concluded by noting that “it is evident from various case laws cited above, that data collection, usage and storage (including biometric data) in Europe requires adherence to the principles of consent, purpose and storage limitation, data differentiation, data exception, data minimization, substantive and procedural fairness and safeguards, transparency, data protection and security. Only by such strict observance of the above principles can the State successfully discharge the burden of proportionality while affecting the privacy rights of its citizens.” (paragraph 187) It will be noted that these are the exact principles that the Court held operated in India as well; European case-law, thus, is heavily persuasive authority on this issue.

The Court then went on to specifically analyse the provisions of the Aadhaar Act on the touchstone of these principles. It held that “data minimization” was satisfied because the information collected was minimal, and the nature of the transaction or the individual’s location was not revealed during authentication; at the same time, the Court invalidated the storage of any form of metadata other than “process metadata”, in order to meet the requirements of data minimization; it also held that “purpose limitation” was satisfied because certain definitional provisions had been read down – and – critically – Section 57, which allowed private parties to use the database under cover of any “law or contract” had been struck down (as would be done later in the judgment); on data retention, the Court restricted the time period for which the data could be stored to six months.

On both counts, the petitioners made a specific argument that there were insufficient safeguards under the framework of the Act with respect to data sharing, as – in particular – the police could gain access to the database. The Court answered this by holding that these concerns were assuaged by (a) reducing the period of data retention to six months, (b) requiring that if through a judicial order any individual’s information was to be shared, that person would have to be given a hearing (under S. 33 of the Act); in particular, and crucially, the Court noted that “there is a reasonable presumption that the said court shall take into consideration relevant law including Article 20(3) of the Constitution as well as privacy rights or other rights of that person before passing such an order.” (c) sharing of information that did not go through a judicial process (such as in cases of national security under S. 33(2)) was invalid, and a judicial member would have to be added to the decision-making authority; and that Section 57 had been struck down (paragraph 220).

Data Silos

Thirdly, on the aspect of the integration of data silos, the Aadhaar Judgment noted that in the Privacy Judgment, it had clearly been held that isolated information silos, when aggregated, could enable profiling (paragraph 232); as indicated above, the Court found that as a matter of law silos remained integrated, and were not permitted to be aggregated.

As an overall point, the Court held additionally – while addressing the privacy claim – that as part of the balancing process, the expectation of privacy in biometrics and irises was relatively low (as opposed to, for example, medical data); thus, overall, data collection remained “minimal”, and that this helped tip the balance of rights in favour of Aadhaar. (paragraphs 295 – 297, 308)

Proportionality

Fourthly, moving on to specific challenges beyond the Aadhaar Act, the Court upheld the mandatory linking of Aadhaar with PAN, but struck down linking with bank accounts and SIM cards. In each case, the Court’s rationale was founded on the question of whether the government had managed to discharge its evidentiary burden under the proportionality standard (i.e., demonstrating a legitimate State aim, a rational connection between the measure and the aim, that the measure was least restrictive with respect to fundamental rights as compared to all other alternatives, and finally, that on balance, it was proportionate). On the issue of PAN Cards, it held that the government had demonstrated with “empirical data” that as Aadhaar was a unique identifier, it could deal with the problem of bogus or duplicate PAN cards (paragraph 421, 423); on the other hand, as far as bank accounts were concerned, the Court specifically held that “that it does not meet the test of proportionality and is also violative of right to privacy of a person which extends to banking details.” (paragraph 429); importantly: “under the garb of prevention of money laundering or black money, there cannot be such a sweeping provision which targets every resident of the country as a suspicious person. Presumption of criminality is treated as disproportionate and arbitrary.”

The Court went on to hold that the State had not even demonstrated how mandatory linking would solve the problem of black money, and why alternative methods of KYC were insufficient; mere “ritual incantation” of black money would not suffice under the proportionality standard (paragraph 434), in a world in which maintaining a bank account had become “almost a necessity” (paragraph 435); rather, “there should have been a proper study about the methods adopted by persons who indulge in money laundering, kinds of bank accounts which such persons maintain and target those bank accounts for the purpose of Aadhaar. It has not been done.”

And the Court returned a similar finding on the issue of SIM cards, noting that “for the misuse of such SIM cards by a handful of persons, the entire population cannot be subjected to intrusion into their private lives. It also impinges upon the voluntary nature of the Aadhaar scheme. We find it to be disproportionate and unreasonable state compulsion.” (paragraph 442)

The Legal Standards

In summary, therefore, the Aadhaar judgment proceeded in this way: the Supreme Court accepted the Petitioners’ constitutional tests for adjudicating the validity of the Aadhaar programme. It found that parts of the Aadhaar programme were compliant with these tests, and parts of it were not. At some places, the Court found that compliance was possible if certain provisions were read down, or interpreted narrowly. At other places, it found that it was not possible – and those provisions were struck down. When we read this holistically, and in view of the Privacy Judgment, the following principles (as indicated above) emerge:

• Profiling is unconstitutional. Consequently, aggregation of data silos that enables profiling is also unconstitutional. The “360 degree view” of citizens that certain states and police departments have proclaimed as a matter of pride, is not permitted under law.
  • As a corollary, collection and storage of metadata that enables profiling is also unconstitutional.
• Purpose limitation is mandatory for data collection. In other words, if law enables data collection for “x” purpose, it cannot then be stored/used for any purpose other than X.
  • Two important corollaries follow from (a) and (b). First, the Aadhaar database cannot be accessed by other bodies (for example, the police). Not only would this breach both (a) and (b), it would also – in this specific case – breach the right against self-incrimination (it is for this precise reason that the Court insisted that sharing of information could only be done through a specific and individual judicial order, or an order involving a judicial member).
  • Secondly, laws for data collection cannot be framed in generic or open-ended terms. They must categorically specify the purpose for which data is collected (and will be stored and used), and their constitutionality will be judged on that count.
• Private parties are not authorised to access the Aadhaar database. This becomes important in light of the fact that after the judgment, an ordinance – and then a law – was passed just to allow this. This law is unconstitutional. It may be argued that there are parts of the judgment that suggest that the only part struck down in Section 57 was the part that allowed access even through a “contract.” This argument cannot succeed. The Aadhaar Judgment is clear on more than one occasion that the part involving body corporates is the one that is struck down – law or contract notwithstanding. There are three further reasons why this interpretation is correct: first, the fact that clearly the database should not be made accessible purely through a contract was not the only reason why the Court found Section 57 unconstitutional. Section 57 was also struck down because it violated purpose limitation – and the distinction between law and contract is agnostic in that regard; secondly, the Court upheld the Aadhaar Act as a money bill on the basis (inter alia) that it had already struck down Section 57 (and that the rest of the Act was substantially a money bill). Obviously, this could not have been the case if only a part of Section 57 had been struck down – the procedural flaw would have remained in that case; and thirdly, the Court struck down Section 57 because it enabled commercial surveillance – another point that is agnostic about the difference between law and contract.
• Any law requiring data collection must satisfy the principle of proportionality. This principle requires the government to demonstrate the necessity of the collection, through concrete evidence. (for example, if the government wants to mandatorily link Aadhaar with Voter IDs, it must demonstrate the factual necessity for it, and also that alternative methods of “de-duplication” are insufficient). Crucially, data collection cannot be blanket – that is, if the goal is to identify a specific instance of wrong-doing or prevent crime (in policing), the State cannot achieve that by blanket and indiscriminate data collection, that fails to distinguish between those against whom there is probable cause of suspicion, and against whom there is not. In other words, data collection statutes must be specific and targeted.
  • The period of data retention also speaks to the proportionality of the measure. Retaining data for an excessive period renders the measure disproportionate.
• The greater the reasonable expectation of privacy in the data in question, the higher the burden of justification upon the State. In the Aadhaar Judgment, the Court held that the expectation of privacy in biometric details and iris scans was low. However, for any other species of data, (for example, DNA), the analysis will have to be undertaken afresh.

Conclusions

As we pointed out at the time of the judgment, there are some serious doubts over the Court’s analysis of facts, and application of law to the facts, throughout the course of the verdict. Those doubts remain. However, while issues of that kind are specific to the judgment – and to the constitutionality of Aadhaar – the interface between technology and fundamental rights obviously is not. It is here that the legal standards evolved by the Court in the Aadhaar Judgment are important, because is they – and not the concrete, fact-specific holding on the constitutionality of Aadhaar – that will provide the constitutional framework within which future disputes will be litigated. In this post, I have attempted to show that on that question, the Supreme Court articulated – and accepted – a rigorous and privacy-protective set of legal standards. A correct application of those standards would invalidate – or at least, throw into serious doubt – the government’s plans for open-ended data collection (under the guise of anodyne terms such as “data is the new oil), facial recognition tenders, and indiscriminate DNA profiling; most importantly, these standards provide a crucial yardstick from which to judge the adequacy of the Data Protection Act that is eventually passed by Parliament. Any such legislation – it hardly needs reminding – must comply with these standards, as they are grounded within the Constitution. In other words, the soon-to-come statutory landscape of data protection in India must adhere to the constitutional framework that has been traced out above.

The Afterlife of the Aadhaar Dissent: The Jamaican Supreme Court Strikes Down a National Biometric Identification System

Justice Charles Evan Hughes’ famous aphorism, that a dissent is an “appeal to the brooding spirit of the law, to the intelligence of a future day”, has passed into legend. It was famously invoked by Justice H.R. Khanna, while concluding his dissent in the Habeas Corpus case. But sometimes, a dissent is not limited to a footnote in the judicial lore of a nation, waiting for the years to pass by until the “intelligence of a future day” dawns. Sometimes, like the swallow flying south, a dissent becomes part of the global migration of ideas. It finds fertile soil far from home, there to bloom into the full richness that it has been denied in its own native environment.

Earlier this week, the Supreme Court of Jamaica struck down the Jamaican National Identification and Registration Act [“NIRA“]. The NIRA was a law that mandated the collection of biometric information from all Jamaican residents, and its storage in a centralised database. The similarities with Aadhaar are immediate and clear, and indeed, a substantial part of the judgment(s) were focused on comparisons between NIRA and the Aadhaar Act, and the Indian Supreme Court’s judgment in Puttaswamy. And what is striking about the judgments of Chief Justice Sykes and Justice Batts is that, after a detailed and painstaking engagement with Puttaswamy, both judges held that, on multiple counts – on the application of the proportionality standard, on the articulation of freedom and privacy, on the dangers of centralised databases, and on the shape and design of data protection frameworks, it was Chandrachud J.’s dissenting opinion that was persuasive, and deserved to be followed. The NIRA, accordingly, was struck down as unconstitutional.

NIRA: Similarities and Differences with Aadhaar

As the sketchy description outlined above indicates, NIRA and Aadhaar bear substantial similarities. Indeed, these similarities went beyond the collection and storage of biometric information, and extended to the design of the enactments: like Aadhaar, NIRA established a centralised database [“NCID“], a centralised authority to deal with collection and storage, contained provisions for private party access, had provisions for when data could be accessed, and so on. Furthermore, the justifications offered by the State were remarkably similar: preventing and eliminating crime, preventing corruption (FATCA was cited as well!), streamlining delivery of benefits, facilitating ease of identification, and so on.

At the same time, however, there were some substantial formal differences between NIRA and Aadhaar (why I use the word “formal” will become evident immediately hereafter, to anyone familiar with how Aadhaar actually works in practice). First, enrolment under the NIRA was legally mandatory, on pain of criminal sanctions; secondly, information collected under NIRA was substantially more than that collected under Aadhaar (it included blood samples, for example); and thirdly, third parties had formal access to the database under NIRA.

The judgment(s) of the Jamaican Supreme Court made much of these differences between NIRA and Aadhaar to argue that criminalising non-compliance was disproportionate, that the information taken did not comply with the principle of data minimalism, and that the access of third parties raised constitutional concerns of the privacy and security of the data. What is remarkable, however, is that despite finding these substantial formal differences, and despite finding that the Indian Supreme Court had read down the Aadhaar Act in significant ways (for example, by holding that in case of an authentication failure, an individual was entitled to present an alternative identification), the Jamaican judges still went on to follow, in granular detail, the judgment and reasoning of Chandrachud J.

Justice Batts and the Primacy of Choice

I begin with Batts J.’s judgment, because of its focus on one straightforward and clear principle, which was also at the heart of Chandrachud J.’s dissent: the primacy of individual choice in a constitutional democracy, and how meaningful choice is at the heart of any understanding of human freedom. The “choice”, in this case of course, involves the right of the individual to choose how to identify herself to the State, from among a range of reasonable alternatives.

After summarising the holding of the Aadhaar Majority, Batts J. cited some of the opening words of Chandrachud J.’s dissent, about how technology was reshaping the relationship between citizens of the State. He then went on to cite the core of Chandrachud J.’s reasoning in great detail, because: “his decision is sufficiently important, and so reflective of my own views, that I will outline the details.” (para 337) In particular, Batts J. cited Chandrachud J.’s views on private party usage, the failure of the State to demonstrate that less intrusive means would not work, the merging of data silos, the doctrine of unconstitutional conditions (paragraph 339), and the general presumption of criminality that entailed nationwide biometric collection (paragraph 340). In closing, he noted that:

In words, which I respectfully wish to adopt as my own, the learned Judge [i.e., Chandrachud J.] summarised the overall constitutional failings of the Aadhaar scheme thus … ‘the technology deployed in the Aadhaar scheme reduces different constitutional identities into a single identity of a 12-digit number and infringes the right of an individual to identify herself or himself through a chosen means. Aadhaar is about identification and is an instrument which facilitates a proof of identity. It must not be allowed to obliterate constitutional identity.'” (paragraph 341)

On this basis, Batts J. therefore held that:

The [NIRA] Act proposes to compel persons to divulge information personal to them. It is the right to choose, whether or not to share personal information, which individual liberty in a free and democratic state jealously guards. The mandatory nature of the requirement as well as the breadth of its scope, and the absence of a right to opt out, are not justified or justifiable in a free and democratic society. If it is intended to prevent corruption or fraud, then it is premised on the assumption that all Jamaicans are involved with corruption and fraud. The danger of abuse by the state or its agencies, and the removal of personal choice, outweigh any conceivable benefit to be had by the community or state. (paragraph 349)

This, it will be noted, is squarely applicable to Aadhaar, which has long been mandatory for all practical effects and purposes.

The Chief Justice, Proportionality, and the Surveillance State

The judgment of the Chief Justice was substantially longer (around 250 pages to Batts J.’s 50), and covered more ground. The Chief Justice began with a detailed analysis of the standard of constitutional review under the Jamaican Charter. His discussion is fascinating in its own right, but for our purposes here, the Chief Justice accepted that the relevant standard was that of proportionality, as articulated by the Canadian Supreme Court in Oakes, and of course, the Indian Supreme Court in Puttaswamy. Crucially, however, the Learned Chief Justice noted that:

I am of the view that this approach provides a proper conceptual framework within which to examine NIRA in order to see whether the provisions in that statute meet the standards indicated by the majority in Puttaswamy (September 26, 2018). I must also say that in the application of the standard I prefer the reasoning of Dr Chandrachud J to that of the majority. (paragraph 151)

(For the multiple errors that the Majority made in applying the proportionality standard, see here).

This, the Chief Justice held, was because:

… I am of the view that the strict application of Oakes is the best way to preserve fundamental rights and freedoms. The majority [i.e., in Puttaswamy] appeared to have taken a more relaxed view. The strict Oakes test makes a more granular scrutiny possible by saying that the court must take account of any deleterious effect of the measure being relied on to meet the objective. Thus the greater the severity of the effect the more important the objective must be, furthermore the measure chosen needs to be shown to be the least harmful means of achieving the objective. (paragraph 177)

With these words, the Chief Justice got to the heart of the deficient legal analysis in the Aadhaar Majority. As I have noted previously, the Aadhaar Majority treated the “least restrictive alternative” element of the proportionality standard in an utterly cavalier fashion, refusing to consider relevant facts, and presenting no analysis of the legal burdens involved. For the Chief Justice, on the other hand (and also for Chandrachud J.), it was a critical element of the test, with the burden lying upon the State (especially because relevant information lay with the State). And, in particular:

In the event that the court is of the view that there is a tie then the claimant must prevail for the reason that in constitutional litigation the attitude of the court must be that the right or freedom prevails unless the violation is clearly justified. This approach ensures that the guarantee given by the Charter is maintained. (paragraph 203)

In this context, the Chief Justice went on to find that the State had provided no evidence that mandatory enrolment with criminal sanctions was the least intrusive way of achieving its goal (the Chief Justice distinguished this from Indian Supreme Court proceedings, where the evidence was litigated in some detail). Noting that there was no real evidence about the scale of the existing problems that necessitated this measure, the Chief Justice therefore held that it failed the test of proportionality. (paragraph 228)

After this, the Chief Justice turned to the nature of biometric systems. Here, he began his analysis with the following observation:

For that [i.e., the analysis of biometric systems] I rely on the judgment of Dr Dhananajaya Chandrachud J in Puttaswamy (delivered September 26, 2018). From reading the judgments in this case Dr Chandrachud J, in my respectful view, demonstrated a greater sensitivity to the issues of privacy and freedom that is not as evident in the judgments of the majority or the other judges who delivered concurring judgments. His Lordship had a clear-eyed view of the dangers of a state or anyone having control over one’s personal information and generally I preferred his approach to the issue over that of the other judges. (paragraph 230)

This, of course, is a very polite and respectful way of saying to the Aadhaar Majority, “you just didn’t get it, did you?” And what was it that the Aadhaar Majority didn’t get? Citing paragraphs 120 to 126 of Chandrachud J.’s dissent, the Chief Justice then observed that:

… his Lordship’s major point was that it is one thing to collect biometric data in the context of a criminal investigation and prosecution but quite another to have extensive biometric data collection outside of that context. The reason is that generally there is extensive and detailed provision regarding the collection and use of biometric information in the criminal law context. So far, in the context of general collection of biometric data outside of the criminal law context, it is likely to result in violations of fundamental rights unless there are very strict and rigorous safeguards because once there is a breach of the database the information taken is unlikely to be recovered in full. (paragraph 234)

Even more importantly, the Chief Justice then cited paragraphs 128 to 131 of Chandrachud J.’s judgment, dealing with identification systems, to observe that:

This passage is highlighting the risk of the combined effect of technology with control over data. Unlike the majority in Puttaswamy (September 26, 2018) who seemed to have taken a rather benign view of this aspect of the matter Dr Chandrachud J destroyed the notion that merely because similar or identical information is already in the possession of the state that in and of itself makes taking of such information again legitimate. His Lordship clearly understood the implication of collecting biographical information, combining it with biometric then automating the process with supporting algorithms. Add to that the possibility of profiling. This scenario translates into great power over the lives of persons especially when that data and technology are in the hands of the state and powerful private actors as in Google, Amazon and the like. Of course, with the latter, the engagement is consensual or at the very least the person can opt out after sometime. What NIRA is proposing is control over vast amounts of data, no opt out and linking the data held in different silos by a unique identification number, thereby reducing anonymity even further and increasing the possibility of profiling and generating new information about the data subject. (paragraph 237)

What the Chief Justice understood – and what Chandrachud J. had understood in his dissent – was, of course, the existential peril posed to freedom and privacy that stemmed from merging silos of information, and the ways in which that could be used to generate entirely new sets of information, as well as facilitate profiling. As the Chief Justice observed, devastatingly, “respectfully, the majority in Puttaswamy (September 26, 2018) did not seem to have a full understanding of this and its implications in the say that has been demonstrated by Dr Chandrachud J.” (paragraph 238) On the basis of this bedrock of analysis, then, the Chief Justice went on to hold that NIRA unjustifiably and disproportionately impacted privacy. And in the course of his analysis, he also echoed Batts J., noting – crucially for our purposes – that “the most remarkable thing is that no submission was made to indicate how, for example, a voluntary scheme would prevent the state from providing reliable, safe and secure identification to its citizens or ordinary residents who wish to be part of the scheme.”

Lastly, the Chief Justice also found that Chandrachud J.’s dissenting opinion better articulated the shape and design of a data protection authority that could pass constitutional muster:

I adopt the following paragraph from his Lordship’s judgment at paragraph 236 and apply with such modifications are necessary for application to NIRA. His Lordship stated: An independent and autonomous authority is needed to monitor the compliance of the provisions of any statute, which infringes the privacy of an individual. (paragraph 247(88)).

The absence of any such authority was, therefore, another reason to hold the statute unconstitutional.

Conclusion

The Chief Justice set out his conclusions from paragraphs 245 to 254, striking down substantial portions of the Act, and then holding that they could not be severed – and therefore, the statute as a whole had to fail. Like the judgment of Batts J., the Chief Justice’s judgment is a fascinating study in its own right – in particular, in its assessment of the specific details of the NIRA system, in how it deals with the probabilistic character of biometric identification, the articulations of standards and burdens, the discussion of proportionality and the rebuttal of the State’s arguments that the Court must stay out of policy domains, and – very interestingly – in its disagreement with Bhushan J.’s concurring opinion on Aadhaar, on whether “national security” could be a ground to divulge personal information. Refreshingly, the Chief Justice held that the use of such terms was nothing more than a “Trojan Horse”, which would make the entire point of protecting fundamental rights illusory.

As the above discussion illustrates, however, for us, the most fascinating aspect of this judgment is the in-depth dialogue it undertakes with both the Majority and the Dissent in Aadhaar, on their own terms – and the rigorous and detailed reasons it gives for choosing to follow the Dissent over the Majority.

To end with Hughes again. His full quote reads:

A dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed.

 

But there are some occasions in history when the betrayal into error is recognised not within, but without. Sometimes, we need friends and colleagues in other parts of the world to hold up the mirror that we are unwilling or unable to look into. Perhaps it is the fate of the Aadhaar Dissent to travel around the world, a light in dark places, long before it is recognised by the brooding spirit of law in its homeland, and the error is corrected at last.

One can but hope.

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(Disclaimer: The author was involved on the side of the Petitioners in the Aadhaar challenge.)

Notes from a Foreign Field: The Canadian Supreme Court on the “Reasonable Expectation of Privacy”

In an interesting judgment handed down on February 14 – Queen v Jarvis – the Supreme Court of Canada engaged in a detailed discussion of what constitutes a “reasonable expectation of privacy.” The facts in Jarvis were simple. The accused was a schoolteacher, who was caught while surreptitiously taking videos of (primarily) female students, within the school premises, through a pen-camera. The videos focused upon the students’ faces, upper bodies, and breasts. The accused was charged with the offence of voyeurism. The relevant part of the statute had two elements: it penalised observing or making a recording of a person in circumstances that gave rise to a reasonable expectation of privacy, if that was done for a sexual purpose. The courts below were united in affirming that the second element existed, but split on the question of whether students “engaged in ordinary school-related activities in common areas of the school” had a reasonable expectation of privacy within the meaning of the statute. The Supreme Court, therefore, was tasked only with answering this question, which it did in the affirmative.

Background

The significance of the Canadian Supreme Court’s judgment lies in the fact that the phrase “reasonable expectation of privacy” has attained near-universal currency, but its precise interpretation – and therefore, the scope and limitations of the right to privacy itself – remains disputed. It remains an open question whether a “reasonable expectation of privacy” turns primarily on an individual’s subjective expectations or whether those expectations are “objectively” reasonable – or some combination of both. And what constitutes a “reasonable” expectation of privacy? Does it depend upon social norms? Constitutional principles? Is it a function of the space a person is in – i.e., would it be unreasonable to expect privacy in what we understand as “public spaces”? These questions go to the heart of how we conceptualise privacy, and were therefore central to the Canadian Supreme Court’s analysis.

Counsel for the accused argued that “the common areas of the school” were quintessentially “public spaces”, where the students could not have reasonably expected to be free from being observed or watched, especially when the observers were other students, teachers, or anyone who had general access to those spaces. In other words, a reasonable expectation of privacy could arise when an individual was in a space where she did not expect to be observed by anyone (such as a home), or where she was observed by someone other than people who had access to those spaces (such as, for example, a trespasser in the school), or if the observation or recording was of a body part that she did not expect would be the subject of observation (such as, for example, body parts normally covered by the school uniform). (paragraph 25) In other words, the reasonable expectation of privacy depended upon “the physical features of the space in which a person is located and the degree of control the person has over who may obtain visual access to her in the space.” (paragraph 26) This heavily spatial understanding of privacy has its roots, of course, in American Fourth Amendment jurisprudence, including the case that gave birth to the phrase “reasonable expectation of privacy.”

The Majority View 

The Majority of the Court rejected this approach as unduly narrow. The Majority began its analysis by noting that there existed a reasonable expectation of privacy in circumstances where “a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred.” (paragraph 28) This was not an “all-or-nothing” approach but a contextual enquiry, which required taking into account the location the person was in, the nature of the observation/recording (i.e., how intrusive it was), whether there was consent to being recorded, the manner in which it was done, its purpose, the subject matter, the relationship between the two parties, any background rules, and so on (paragraph 29). Consequently, as the Court observed. “a person does not lose all expectations of privacy, as that concept is ordinarily understood, simply because she is in a place where she knows she can be observed by others or from which she cannot exclude others.” (paragraph 37)

The Majority cited a number of examples to drive home the point: a person relaxing in a public park may reasonably expect to be incidentally captured in the background of someone else’s photograph, but would “retain an expectation that no one would use a telephoto lens to take photos up her skirt.” (paragraph 40) Similarly, “the intrusion into our privacy that occurs when a person hears our words or observes us in passing is fundamentally different than the intrusion that occurs when the same person simultaneously makes a permanent recording of us and our activities.” (paragraph 62)

This contextual enquiry, the Majority stressed, was particularly important in order to cope with the evolving use of technology, and its impact on privacy interests. In particular, the evolution of technology that made it easier for government or private parties to “glean, store and disseminate information about us” (paragraph 63), did not therefore imply that “our reasonable expectations of privacy will correspondingly shrink.” (paragraph 63) And this contextual enquiry, further, had to be understood in light of the interests that a right to privacy sought to secure: in this context, for example, the right of individuals to “determine for themselves when, how, and to what extent information about them is communicated to others.” (paragraph 66)

A combination of these factors led the Majority to conclude, therefore:

“… “reasonable expectation of privacy” is a normative rather than a descriptive standard … [and therefore] the question of whether a person claiming the protection of s. 8 had such an expectation cannot be answered by falling back on a “risk analysis” — that is, by reducing the inquiry to whether the person put themselves at risk of the intrusion they experienced … whether a person reasonably expects privacy is necessarily a normative question that is to be answered in light of the norms of conduct in our society. And whether a person can reasonably expect not to be the subject of a particular type of observation or recording cannot be determined simply on the basis of whether there was a risk that the person would be observed or recorded. The development of new recording technology, and its increasing availability on the retail market, may mean that individuals come to fear that they are being recorded by hidden cameras in situations where such recording was previously impossible; however, it does not follow that individuals thereby waive expectations of privacy in relation to such recording or that retaining such an expectation becomes unreasonable.” (paragraph 68)

Applying these principles, the Majority was easily able to find that the accused had breached the law. School students in common areas of a school may not have had a reasonable expectation not to be observed, or not to be recorded by security cameras, but they did have a reasonable expectation not to be recorded by other individuals for sexual gratification, especially when the recording was of intimate or sexualised body parts. The conviction, therefore, was affirmed.

Significance

The combined elements of the Majority holding – the delinking of privacy from space, the focus on contextualisation, the insistence that the “reasonableness” is a normative (not descriptive) enquiry, and the observation that “reasonableness” had to be determined within the framework of the individual right to control information about oneself – represent a valuable addition to global privacy jurisprudence.

In particular, the Majority’s sensitivity to the interface between privacy and evolving technologies is particularly important. To understand why – especially in the Indian context – take the example (of course!) of the Aadhaar case. An argument that was made – both in Court and in the media – went something along the lines of: “if people happily give up their biometric information to immigration authorities at the border or their personal information to Google or Facebook, the privacy interest in such information must be very weak or attenuated.” The Canadian Supreme Court’s contextual analysis demonstrates that this framing itself is fundamentally flawed, because it takes privacy interests as all-or-nothing, instead of context-dependent. It is entirely consistent for an individual to be willing to give up their biometric information at Immigration to an entity that – apart from stamping visas, has little other control over the individual’s life – while remaining unwilling to have it stored in a centralised information database that is then put to use across a number of critical domains, from banking to paying tax (in an abstract way, it is like the distinction in this case between mere observation, and a recording, which the Court measured in the language of intrusiveness). The point is not that because we easily give up personal information to Google, that personal information has lost its value, or that our claim to sanctity of personal information has become weakened. The issue turns, rather, on the manner or nature in which control over personal information is relinquished to an entity such as Google, on the one hand, and when it is commandeered by the State for the purposes of databasing, on the other. A contextual analysis demands, in other words, that each instance be taken on its own terms, and examined on its own merits, on the touchstone of the factors set out by the Canadian Supreme Court.

As I have discussed previously, the “reasonable expectation of privacy” standard was adopted by the Majority judgment in Aadhaar, and done so entirely acontextually. Indeed, the Aadhaar Majority made exactly the error that the Canadian Supreme Court warned against: by observing that there were other statutes that required demographic and biometric information to be yielded up to the State, the Majority then concluded that the privacy interest in biometric and demographic information was weak and attenuated. The Canadian Supreme Court’s judgment demonstrates, however, how out of step the Aadhaar Majority is with contemporary global privacy jurisprudence.

The Concurring Opinion

Justice Rowe delivered a concurring opinion for himself and three other judges. While arriving at the same conclusion as the Majority, he took issue with the Majority’s use of Section 8 of the Canadian Charter to interpret the anti-voyeurism statute. That does not concern us here. However, there is another fascinating aspect to this opinion. Agreeing that the question of what constituted a “reasonable expectation of privacy” was a normative one, Rowe J. noted that:

“Privacy” defies a singular definition. It is a protean concept given content from the circumstances to which it is applied. But the privacy interest engaged by s. 162(1) is not so amorphous as to defy sufficient certainty and stability to meet the requirements of the criminal law. The phrase “circumstances that give rise to a reasonable expectation of privacy” in the context of the sexual offence of voyeurism is meant to protect a privacy interest in one’s image against observations or recordings that are, first, surreptitious and, second, objectively sexual in content or purpose. This privacy interest itself, where it is substantially and not trivially engaged (e.g. by merely uncouth or ill-mannered behavior), is founded on the twin interests of the protection of sexual integrity and the autonomy to control one’s personal visual information. (paragraph 128)

What is important about this paragraph is that it defines “reasonableness” not in terms of social norms, but in terms if constitutional values such as sexual integrity and autonomy (although here, in terms of Parliamentary intent behind introducing the voyeurism section). Rowe J., in other words, clarified and further elaborated upon the Majority’s more surface-level treatment of how the framework of constitutional interests shaped and gave meaning to “reasonableness.” Consequently:

In brief, an infringement of one’s privacy interest under s. 162(1) can only be sustained if that individual is recorded or observed in a way that both causes them to lose control over their image; and also infringes their sexual integrity. This conjunctive test accords with what Parliament sought to protect by creating the voyeurism offence: “the state’s interest in protecting the privacy of individual citizens and its interest in preventing sexual exploitation of its citizens coalesce where the breach of privacy also involves a breach of the citizen’s sexual or physical integrity.” (paragraph 133)

And:

The ability to maintain control over what personal visual information is shared, and with whom, is a facet of privacy linked to personal autonomy … privacy is the ability to control what is known or observed about oneself. An infringement of privacy occurs when that which is unknown/unobserved becomes known/observed without the person having put this information forward. These perspectives provide a framework inclusive of location as well as personal dignity: they identify an essential privacy interest that a person retains even when in a public place. (paragraphs 135 – 136)

 

The striking thing about this analysis is how closely it mirrors Chandrachud J.’s articulation of the “reasonable expectation of privacy” test in Puttaswamy. Chandrachud J. had likewise insisted that “reasonableness” had to be adjudicated not in terms of social norms, but in terms of constitutional values. In paragraph 169 of his plurality judgment, he expressly stated that “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.” It was this insight that formed the basis of the disagreement, in Aadhaar, between the Majority judgment and Chandrachud J.’s dissenting opinion: the Majority elected to go back to the old formulation of understanding “reasonableness” as what “society” considers to be reasonable, thus allowing it – in the manner described above – to dismiss the strength and intensity of the privacy interest in biometric and demographic information. On the other hand, it was the understanding of “reasonableness” in the language of constitutional values that formed a major plank of Chandrachud J.’s dissent.

Conclusion

Queen v Jarvis marks the latest attempt by a constitutional court to grapple with the interface between a world in which technology has made collection, storage, and retrieval of information almost costless, and the right to privacy. The Canadian Supreme Court has offered up a nuanced understanding of this interface, providing us with the conceptual framework and the analytical tools to apply it to the more complex situations that we shall face in the future. There is also an interesting conversation between Jarvis and Puttaswamy (Privacy) on the question of how we ascertain the “reasonable expectation of privacy.” The Aadhaar judgment marked a rollback of this progressive understanding, and it remains to be seen what the future holds in this regard.

The Aadhaar Judgment: A Round-Up

Here is a round-up of the ICLP blog’s coverage of the Aadhaar judgment. The arrangement of the posts tracks our suggested order of reading them. After that, some other critiques of the judgment have been provided as well. Filter, as always, for bias.

This page is meant to serve as a resource going forward. The Aadhaar judgment is not the end, but merely the first round in an increasingly crucial debate on the intersection between technology and the Constitution. Our aim is to work towards a legal and constitutional provision where technology is harnessed to expand human freedom, and not constrain it in service of the State (or of private corporations). As a great man once said, “it always seems impossible – until it is done.”

Overview

1. “Take me as I am – subject to Aadhaar-Based Biometric Authentication”: An Overview of the Aadhaar Judgment.
2. The Aadhaar Judgment: A Dissent for the Ages.

Factual analysis (A four-part series by Anand Venkat)

1. The Aadhaar Judgment and Reality – I: On Uniqueness.
2. The Aadhaar Judgment and Reality – II: On Fallibility.
3. The Aadhaar Judgment and Reality – III: On Surveillance.
4. The Aadhaar Judgment and Reality – IV: On Data.

Legal Analysis

1. The Aadhaar Judgment and the Constitution – I: Doctrinal Inconsistencies and a Constitutionalism of Convenience.
2. The Aadhaar Judgment and the Constitution – II: On Proportionality (by Mariyam Kamil).
3. The Aadhaar Judgment and the Constitution – III: On the Money Bill (by Suhrith Parthasarathy).

Impact

1. The Aadhaar Judgment: Telecom Operators and the Legal Standing of Chandrachud J.’s “Dissenting” Opinion (by Prasanna S.).

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In addition, here are links to pieces elsewhere, on related topics.

Overview

1. Methods of Interpretation. (Apar Gupta)
2. Aadhaar Verdict No Reason to Celebrate for the Government (Prasanna S.)
3. Aadhaar valid, but restricted, and still a problem (Vrinda Bhandari).
4. Aadhaar verdict: SC Majority Judgments Lacks Consistency in Logic and Reasoning, and Turns Constitutional Analysis on its Head (Malavika Prasad).
5. Aadhaar verdict: Dissenting Judge D.Y. Chandrachud Feels Money Bill Tag may be Misused to Escape Rajya Sabha Scrutiny. (Malavika Prasad).

Money Bill

1. The Perils of Taking the Money Bill Route (Prasanna S.)

Section 57 (use by private parties)

1. Section 57: Why Aadhaar can’t be used as authentication by private companies (Prasanna S.)
2. In Striking Down Section 57, SC has Curtailed the Function Creep and Financial Future of Aadhaar (Vrinda Bhandari and Rahul Narayan).

Impact

1. Aadhaar Judgment Sets a Legislative Agenda (Apar Gupta).

 

The Aadhaar Judgment and Reality – IV: On Data (Guest Post)

(This is the fourth and concluding part of Anand Venkat’s guest post series interrogating the factual foundations of the Aadhaar judgment. It is also the concluding essay in this blog’s coverage of the Aadhaar judgment (for now). We will be putting up a round-up shortly).

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In this final part on the analysis of the Aadhaar judgement, we touch upon how the Majority judgement handled the arguments on data security in relation to the Aadhaar data, and contrast it with the minority opinion of Chandrachud J.

Data leaks

Are data leaks harmful for the people involved? The SC did not want to consider this question at all, and punted it to the currently pending case in Delhi HC (Page 250, footnote):

A challenge to the Aadhaar project for violation of IT Act and Rules has been filed in the Delhi High Court in the matter of Shamnad Basheer v UIDAI and Ors. Therefore, we are not dealing with this aspect, nor does it arise for consideration in these proceedings.

Data minimization

It was argued extensively before the court that the data collected during Aadhaar enrolment includes not just demographic data and biometrics, but also additional information, such as religion and caste, which was explicitly forbidden by the Aadhaar Act; and furthermore, this additional information was sent to the various State Resident Data Hubs (SRDHs). 

However the Majority did not engage with the evidence, and instead merely cited the Aadhaar Act. It neither declared the collection of additional information in variance with the Aadhaar Act as illegal, nor did it want to deal with the information stored in SRDHs, obtained during enrollment (Page 274, Para 193).

Section 2(k) specifically provides that Regulations cannot include race, religion, caste, tribe, ethnicity, language, records of entitlement, income or medical history. Thus, sensitive information specifically stand [sic] excluded.

It also concluded that as per the powerpoint presentation by the UIDAI CEO, which is not part of the affidavit, that location information was not collected (page 541):

We have recorded in detail the powerpoint presentation that was given by Dr. Ajay Bhushan Pandey, CEO of the Authority, which brings out the following salient features: (i) During the enrolment process, minimal biometric data in the form of iris and fingerprints is collected. The Authority does not collect purpose, location or details of transaction.

By doing so, it chose to ignore the affidavits filed by Manindra Agarwal on UIDAI’s behalf, that breach of verification logs will result in the leakage of location data. The minority opinion however, explicitly refers to the affidavit and declares that: (page 886).

The report indicates that it is possible through the Aadhaar database to track the location of an individual. The Aadhaar database is different from other databases such as PAN Card or driving license. The Aadhaar database is universal and contains the biometrics of an individual. The threshold to scrutinize the effects of this database is therefore much higher as compared to that of other databases.

And once all the contradictions were resolved by selectively ignoring the factual claims made by the petitioners (and also supported by affidavits filed in support of UIDAI), the Majority then proceeded to declare that (page 274, para 194):

We find that Section 32 (3) of the Aadhaar Act specifically prohibits the authority from collecting, storing or maintaining, either directly or indirectly any information about the purpose of authentication. The proviso to Regulation 26 of Authentication Regulations is also to the same effect. Thus, the principle of data minimization is largely followed.

Data classification

An important question in cyberspace is how to classify personal data as sensitive or non-sensitive. It must be noted a priori that this classification depends upon the context. For instance, my true name might reveal my religion, which could be used to harm me in a conflict zone, but would be entirely harmless elsewhere. Similarly, fingerprint and facial scans, freely obtainable through photography, could be harmless if shared without associated identity information, but could be deadly for public anonymity in authoritarian regimes.

Once again, the Majority is oblivious to this basic distinction, when it proclaims that (page 273, para 193):

Demographic information, both mandatory and optional, and photographs does [sic] not raise a reasonable expectation of privacy.

On the other hand, Chandrachud J.’s minority judgement correctly notes that (page 778, para 148):

Section 29(1) of the Aadhaar Act expressly states that ‘core biometric information can never be shared with anyone for any reason whatsoever or be used for any purpose other than generation of Aadhaar numbers and authentication under this Act’. However, this provision which seemingly protects an individual’s core biometric information from being shared is contradicted by Section 29(4)253 of the Act, the proviso to which grants UIDAI the power to publish, display or post core biometric information of an individual for purposes specified by the regulations. The language of this section is overbroad and which could lead to transgressions and abuse of power. Moreover, sub-sections 29(1) and (2), in effect, create distinction between two classes of information (core biometric information and identity information), which are integral to individual identity. Identity information requires equal protection as provided to core biometric information.

Encryption

While the UIDAI made the claim that all biometric data is encrypted, the Majority went further and made the astonishing claim that the encrypted data was also sent to the CIDR immediately. The offline enrolment client, however, does not do that, in order  to facilitate enrollments done in places where internet connectivity is non-existent. 

Furthermore, the UIDAI also claimed that the entire Aadhaar enrolment eco-system is foolproof, because within few seconds of the biometrics having been collected by the enrolling agency, the said information would transmitted the Authorities/CIDR (in an encrypted form), and go beyond of the reach of the enrolling agency.

Chandrachud J.’s minority judgement, however notes correctly that encryption was not even mandated in the initial stages (page 772)

In the ‘Aadhaar Handbook for Registrars 2013’ (“2013 Handbook”), it was stated that “UIDAI has defined security guidelines for the storage of biometric data”. While it is indicated in the handbook that guidelines for storage were defined by UIDAI, it is evident that this took place only after 2010 before which the registrars were functioning without guidelines mandating how the biometric data was to be kept secure.

Hacking and Hope

During the course of the hearing, the counsel for the petitioners, Mr. Divan, pointed out various attacks on the CIDR. And one of them was the UP Aadhaar hack case, which was not only part of the oral record, but related FIRs around these attacks were part of the written submissions by Mr. Grover as well. This is how the Court responded: 

It may, however, be mentioned that of late certain reports have appeared in newspapers to the effect that some people could hack the website of CIDR, though it is emphatically denied by the UIDAI. Since there are only newspapers reports to this effect which appeared after the conclusion of hearing in these cases and, therefore, parties could not be heard on this aspect, we leave this aspect of the matter at that with a hope that CIDR would find out the ways and means to curb any such tendency.

 

It is possible to argue that the above paragraph refers not to the petitioners’ submissions, but to a later HuffPost article on data breaches. However it does not change the reality that the Majority did not engage with materials provided by the petitioners through affidavits, written submissions and also police first investigation reports filed by the police themselves.

Conclusion

How do you analyze the impact of a technological regime on the Constitution? That was the heart of the question in the Aadhaar challenge. There are always unknown positives and unknown negatives when a new technology is rolled out. The court was asked to make a comparative analysis between the two, and come up with a decision.

The typical process used is a cost-benefit analysis (which, under constitutional review, is further refined and made more rigorous by taking into account rights violations, as part of the proportionality standard). However until today, the State has not even engaged in such a exercise, for it would instantly show that the costs far outweigh the benefits, on all – economic, technological and data security – angles. Instead, the State denied the very existence of costs, and stated and the benefits were immense, without a shred of evidence.

The Majority opinion, however has done something even more astonishing. It has refused to engage with factual claims on these aspects made by the Petitioners, and then went to declare that Aadhaar is unhackable and foolproof, based on the submissions of the State. By doing so, it also set the template for future litigations.  All the state has to do, henceforth, when it rolls out technological regimes that are untested and have huge implications to the population, is to ensure that it

• Rolls them out at scale.
• Uses any means necessary to ensure the roll out.
• Ignores any previous court orders barring it from the roll out.
• Denies all harmful effects of the technology on the ground.
• Makes up evidence about the benefits.
• And also makes a powerpoint presentation to the court, when challenged on these aspects.

The Majority opinion on Aadhaar showed that this strategy might well succeed. However, the dissenting opinion by Chandrachud J indicates that there might yet be hope for a future Court to have an intelligent factual debate about the intersection of technology, freedom and state.

In the interim, people can continue to die, crucified on “the unproven plea of exclusion of some”, submitted as evidence or in affidavits. After all, the dead don’t speak, and even if they do, the court won’t listen.

The Aadhaar Judgment: Telecom Operators and the legal standing of Chandrachud J.’s “dissenting” opinion

(A stand-alone essay in our ongoing series on the Aadhaar judgment, this is a guest post by Prasanna S.).

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Justice DY Chandrachud’s celebrated judgment in the Aadhaar case has been described as, broadly speaking, a ‘dissent’. Just before he pronounced the judgment, he had himself announced in open court that it was a partial dissent. However, there is nothing in the judgment to indicate he had read the other two judgments or if any of the other two had read his judgment. There is neither an expression of dissent nor concurrence in the judgments. The extent of disagreement between the ‘Majority’ opinion led by Justice Sikri and the ‘Minority’ opinion of Justice Chandrachud’s is to be analysed and understood. The opinion of Justice Bhushan who broadly concurred with Justice Sikri (barring on the issue of Bank Account-Aadhaar linking) is, for simplicity, not discussed here.

A selection of key issues and the indication of broad agreement/disagreements in the judgments is as follows.

Concurrent findings of the Majority and the Minority:

1. The decision of the Speaker on the certification of a Bill as a Money Bill is not immune from judicial review. (I understand that the Majority has equivocated on whether this needs to be decided at all in this case. Be that as it may.)
2. Use of Aadhaar by private parties is unconstitutional (Section 57).
3. The PMLA Rule that provided for mandatory Aadhaar-Bank Account linking is unconstitutional.
4. The DoT circular that mandated Mobile-Aadhaar linking is unconstitutional.

Divergence between the Majority and the Minority:

1. The Minority held that the entire Aadhaar Act and the Aadhaar project are unconstitutional. The Majority upheld the Act.
2. Section 59 of the Act that purported to save the Aadhaar scheme prior to the passage of the Aadhaar Act was struck down as unconstitutional by the Minority. It was upheld by the Majority.
3. Section 57 as a whole was struck down by the Minority. On the other hand, Section 57 was read down only partially by the Majority.

The focus of this article is the issue of the decision on the Mobile-Aadhaar linking under the 23.03.2016 DoT circular. As seen above, both the Majority and the Minority quashed the circular as unconstitutional. The Minority however went on to direct that the Union of India and TRAI should immediately direct the telecom operators to delete Aadhaar and biometric data of subscribers within two weeks (Para 285, internal page 394 of the Minority judgment). This article argues that such a direction, although present only in the Minority opinion, is binding law and the Union of India and TRAI are required to comply with it, unlike what some seem to think. The author did a brief twitter thread on the issue. This article attempts to somewhat exposit it.

Reading separate opinions

When there are separate opinions delivered by the Supreme Court, the exercise extracting the ratio or the ‘law declared’ by the Court is not always straightforward. Sometimes, there is a summary of the judgment signed as the ‘View of the Court’ (or ‘View by the Majority’), which may be of help – as was the case in Puttaswamy(I) (the privacy judgment). Such a summary arrived at by the bench interpreting their own judgments without hearing all the parties as to the reading of each of the judgments has at times created controversy (such as in Kesavananda Bharati).

It is a common practice to analyse the opinions on an issue-by-issue basis and find the bench strength that has supported a particular view in regard to each issue, as this blog did for Puttaswamy(I) on the question of limitations of the fundamental right to privacy. (Incidentally, the author of that post Gautam Bhatia has concluded that the law of the land as to the test of constitutionality for a law impacting the right to privacy is to be found in Justice Kaul’s opinion, which was a separate concurring opinion which was written only for himself, and clearly in the ‘minority.’)  This approach of trying to extract or mine ratio from minority opinions (which may be, broadly speaking, ‘concurring’, ‘dissenting’, or partly ‘concurring’) is not plucked out of thin air. It has not only been part of the common law legal tradition (on the principle that there is a presumption that each of the judgments has been read by everyone on the bench and a lack of dissent on any of the points in the judgment should be taken as a concurrence on that point), but also anchored in the text of India’s constitution.

Distinction between a ‘judgment’ and ‘law declared’ – Can a ‘dissenting judgment’ be a source of law?

The law on this mining exercise is governed by Articles 141 and 145(5) of the Constitution.

Article 141 of the Constitution says,

The law declared by the Supreme Court shall be binding on all courts within the territory of India.

Article 145(5) of the Constitution says,

No judgment and no such opinion shall be delivered by the Supreme Court save with the concurrence of a majority of the Judges present at the hearing of the case, but nothing in this clause shall be deemed to prevent a Judge who does not concur from delivering a dissenting judgment or opinion.

One of the earliest cases that decided the question of whether the judgment in Article 145(5) means the same as ‘law declared’ under Article 141 was Mahendra Thakar v. S.P. Pande AIR 1964 Bombay 170. Therein, a division bench of the Bombay High Court held that:

“There does not appear to be any warrant for reading the provision of Article 145(5) into the provisions of Article 141, and we do not think that the “law declared” can be approximated to the judgment delivered by the Supreme Court. On the other hand, having regard to the provisions of Article 145(5) that a Judge who does not concur may also deliver a judgment, it is clear that the law declared may as well be in a dissenting judgment as in a majority judgment. The argument, therefore, that the three Judges whose decision resulted in the allowing of the appeal in Purshottam’s case did not form a majority of those holding that Article 14 applied to the second proviso to Section 34(3) does not make that the law declared.”

Prem Prakash Gupta v. Union Of India AIR 1977 All 482 held that:

The majority opinion did not express any opinion on this issue but the minority opinion, as expressed by Mahajan J., did examine this issue and answered it in the negative. In my view, in a situation where the majority of the Judges of the Supreme Court expressly chose not to examine a particular issue and decided the suit on certain other grounds, then the expression by the minority on such an issue can be said to have a binding force on the courts in India. In this view of the matter, I think the observations made by Mahajan J., are binding on me.

A similar approach has been followed in or has been laid down in a number of other High Court decisions, including the 2009 decision in Narinder Batra v. Union of India, where the current Union minister for finance, Arun Jaitley argued and won on that proposition.

 

It must be said that the aforementioned high court judgments have neither been overturned nor reaffirmed by the Supreme Court. There have been atleast two instances where the question has been argued. However, in both those instances, the supreme court did not venture an opinion on that as it was found that the majority judgments cited in the cases had in fact disagreed with the reasoning given by the minority opinion sought to be relied upon by the counsel.

Do directions contained in an opinion not expressly endorsed by the majority have the binding force of ‘law’?

However, in Ashok Kumar Gupta v. State of Uttar Pradesh (1997) 5 SCC 201, the Supreme Court dealt with the question of whether a direction by a plurality of judges led by Justice Jeevan Reddy in the Mandal Case (Indra Sawhney v Union of India) is binding given that the plurality was one-judge short of the majority of the judges in the bench.  The Court relied on Sawant J’s separate opinion, concurring on that relevant conclusion and held that the direction by Justice Jeevan Reddy had binding force.

Both these propositions on binding law and binding directions also appeal to common sense. If there is a judicial opinion by a judge or set of judges sitting in the highest constitutional court of the land, it should normally be binding unless strong and compelling reasons exist to suggest otherwise – namely either a clear expression of disagreement with that opinion by a majority of judges of that bench, or a later supreme court decision of a larger bench having overruled it or disagreed with that opinion.

Conclusion

In the instant case, on the telecom circular issue, both the Majority and the Minority judgments in the Aadhaar case had agreed on both the conclusion and the reasons for its unconstitutionality. The Majority expressed no opinion on the deletion of the data, but the Minority directed such deletion. It must be presumed that the Majority impliedly concurred with that direction. The directions contained in the Minority opinion of Justice Chandrachud’s to the Union of India and TRAI relating to the deletion of telecom subscriber Aadhaar data is binding and has the force of law.

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(Credit: The author is thankful for the inputs provided by Goutham Shivshankar.)

(Disclosure: The author assisted the petitioners in the Aadhaar case before the Supreme Court)

The Aadhaar Judgment and Reality – III: On Surveillance (Guest Post)

(This is the third and penultimate essay in Anand Venkat’s four-part series examining the factual foundations of the Aadhaar judgment.)

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In our attempt to further decode the factual errors in the Aadhaar judgement, it is worth asking an important question: why is genuine engagement with contradictory facts very hard? Charlie Munger wrote about 24 causes of misjudgement in 1995 and, not surprisingly, simple psychological denial comes up as number 2 in that list.

In this post, we will argue that simple denial alone can’t explain the Majority’s inability to deal with aspects of the petitioners’ challenge. Technological illiteracy is a factor as well.

Surveillance

What is surveillance? If a policewoman tags along a person, at all times, then it fits the definition of surveillance, because she knows all about the person. Now what if, instead of a policewoman, a recording device is always present? That too fits the definition. So surveillance is not simply someone knowing about a person, but having the capability to know all about her, and actively using that capability.

How is it possible for someone to have the capability to know all about a person ? The answer is “Body Tagging”. If every activity that the person ever does in her life can be reliably attached to her body, a detailed profile can be built about the person, which enables surveillance. Put simply, profiling is surveillance.

Body tagging a person’s life across multiple activities can be easily done, if the “body” is given a unique number, and the unique number is attached to every activity. Thus, if a technological means called “Aadhaar” can produce perfect “unique numbers” that are attached to a body, as the Majority judgement states in paragraph 55 – “when it comes to obtaining Aadhaar card, there is no possibility of obtaining duplicate card” – then mass  surveillance is a logical corollary, if it is attached to other databases.

Surveillance: The absence of factual engagement

The Majority, however, chooses not to engage with the petitioners’ submissions about how the body tagging of persons, across multiple databases, is surveillance. It was brought to the court’s notice that many states have built “State Resident Data Hubs [“SRDHs”], which have body tagged sensitive personal details of their residents, available in multiple silos, and have merged them into one “golden” record. For instance, the state of Andhra has gone further than most and built star-trek dashboards, that display the intimate personal details of 43 million of the state’s 50 million residents: GPS coordinates of their homes, the medicines they use, the food rations they eat, what they say about the Chief Minister on their social media accounts, real-time feeds of thousands of security cameras (with some cameras inside people’s homes – voluntarily, of course), their castes and sub-castes, their religion, their student scholarships and old-age pensions, their movement in every state ambulance, and of course — their Aadhaar numbers.

The Majority avoids engaging with the argument because if it did, it would result in arriving at the same conclusion that Chandrachud J arrives at, in his dissenting opinion, that the technological design of the project actually subverts the Aadhaar Act – actually enabling profiling through surveillance – and hence cannot stand: 

When Aadhaar is seeded into every database, it becomes a bridge across discreet data silos, which allows anyone with access to this information to reconstruct 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. (Chandrachud J., dissenting, paragraph 274)

Surveillance: Internal contradictions

Instead of focussing on body tagging across various databases, the Majority instead focuses only on the surveillance potential of the “Metadata” stored in the CIDR. This leads to logically contradictory observations.

For instance, if Facebook and Google, can know the places where one has shopped and also know the movies that one watched, they already have “data.” But the Majority then went on to make the very bizarre claim that in Para 160 that “data” can turn into “meta-data”! “All this data is there with the companies in respect of its users which may even turn into metadata.”

In the very same paragraph, it makes the further astonishing claim that OTPs are sensitive personal information in the same manner as biometrics:

Every transaction on a digital platform is linked with some form of sensitive personal information. It can be an individual’s user name, password, account number, PAN number, biometric details, e-mail ID, debit/credit card number, CVV number and transaction OTP etc.

The Majority’s inability to understand technology also becomes clear from its discussion on “Authentication log retention”, in paragraph 260.

We do not find any reason for archiving the authentication transaction data for a period of five years. Retention of this data for a period of six months is more than sufficient after which it needs to be deleted except when such authentication transaction data are required to be maintained by a Court or in connection with any pending dispute. Regulations 26 and 27 shall, therefore, be amended accordingly. (paragraph 260)

Let us deconstruct the ruling here carefully. The judgement says that

1. Authentication transaction data needs to be deleted after six months.
2. But not if there is any pending dispute or ordered by a court.

By doing so, it restricts the time frame, in which a dispute could arise to “only six months”. This has ramifications for biometric fraud disputes such as Gujarat biometric data trade, where biometrics of legislators was sold en-masse for 7 lakh rupees and the Airtel LPG routing scam, as these scams went on for months before detection. But the Majority, through its ignorance of technology, ensures instead that it would not be possible for law enforcement to investigate such cases, through limiting the retention of metadata.

And here’s the contradiction: after all, if surveillance is indeed impossible and far fetched as was stated in para 197 (“… therefore, the threat to real-time surveillance and profiling may be far-fetched...”), why would long term retention of authentication logs would be an issue at all? The reading-down is both inexplicable and logically incoherent.

Addendum: Direct Benefit Transfer

There are three important pillars in Direct Benefit Transfer (DBT).

1. The Aadhaar number
2. Mobile
3. Bank Account

In the earlier rollout of DBT, the various schemes’ databases merely collected the bank account numbers or the post office savings bank account numbers of the beneficiaries. There was simply no need for either Aadhaar numbers or mobile numbers. However, once mandatory biometric authentication was introduced as a pre-condition for DBT, the situation changed drastically.

Biometric authentications are always fallible and the Majority’s refusal to engage with that simple technological fact, does not change the reality. Hence the only recourse is OTP authentication via the linked mobile phone. However, UIDAI does not verify the phone, during enrolment, which makes OTPs ineffective. The only “technological hack” then available for UIDAI to avoid biometric exclusion is Mobile linking.

Ever since National Payment Corporation of India (NPCI) introduced the Aadhaar mapper, which links bank accounts to Aadhaar numbers, central and state departments no longer collect beneficiary bank accounts, and instead use the NPCI Mapper to do Direct Benefit Transfers. Hence, for DBT via NPCI to work, seeding Aadhaar numbers into bank accounts was essential.

The court does not engage with the technological aspect of this ecosystem, when it rules that both Mobile and Bank linking are unconstitutional, and strikes them down. So in effect, without perhaps intending to, it has also brought the current Aadhaar-based DBT ecosystem, where NPCI and banks are important players, to a grinding halt. Further, it  has only worsened the exclusion problem caused by fallible biometric authentication, by removing the OTP option.

Conclusion

The factual and logical contradictions outlined so far, lead one to conclude that the Majority has not understood that technological progress is making the law irrelevant. As Lawrence Lessig pointed out:

Every age has its potential regulator, its threat to liberty. Our founders feared a newly empowered federal government; the Constitution is written against that fear. John Stuart Mill worried about the regulation by social norms in nineteenth-century England; his book On Liberty is written against that regulation. Many of the progressives in the twentieth century worried about the injustices of the market. The reforms of the market, and the safety nets that surround it, were erected in response.

When faced with a civil liberties case, that is second longest in the history of the court, the least that the Majority could have done was to engage with the facts and the new emerging technological domain of cyberspace, and how it could make constitutional rights irrelevant. As Lawrence Lessig again points out:

Cyberspace will change from a place that protects anonymity, free speech, and individual control, to a place that makes anonymity harder, speech less free, and individual control the province of individual experts only.

By obstinately refusing to engage with the factual and technological aspects of the Aadhaar project, and how the architecture of the project nullifies the very Aadhaar Act that it upheld, the Majority has only demonstrated its own ignorance of technology, and has probably accelerated the Supreme Court’s own irrelevance, as Lessig had proclaimed so boldly.