Guest Post: The Abortion Petition – Some Key Questions

(This is a guest post by Gauri Pillai.)


This post examines the recent writ petition filed in the Supreme Court of India, challenging the constitutionality of certain provisions of the Medical Termination of Pregnancy Act, 1971 (‘Act’). The Act permits termination up to a period of 20 weeks. It requires the approval of one medical professionals for termination prior to 12 weeks, and two medical professionals for termination between 12 and 20 weeks. Termination is permitted only when continuation of pregnancy would cause grave injury to the physical or mental health of the pregnant woman, or where there is substantial risk that the fetus, if born, would suffer from such physical or mental abnormalities so as to be seriously handicapped (Section 3(2)). If the pregnancy is caused due to rape, or failure of contraceptive device used by a ‘married woman or her husband’, it is presumed that there is grave injury to the mental health of the woman (Explanation, Section 3(2)). Beyond 20 weeks, the Act permits termination only if ‘immediately necessary to save the life’ of the pregnant woman (Section 5).

The Challenge 

The Act, the petition argues, imposes a severe restriction on women’s right to ‘reproductive choice’, that is, ‘the right to choose whether to conceive and carry pregnancy to its full term or to terminate, [which lies] at the core of one’s privacy, dignity, personal autonomy, bodily integrity, self-determination and right to health, recognised by Article 21 of the Constitution’. This is because termination, even within the first trimester, is permitted only upon fulfilling certain conditions, set out above; termination on account of fetal abnormality is allowed only up to 20 weeks; and finally, termination beyond 20 weeks is restricted to instances ‘immediately necessary’ to save the ‘life’ of the pregnant woman.

By critiquing these restrictions for being excessive, harsh and disproportionate, the petition mounts a challenge to the Act under Article 21. However, I argue, the petition does not interrogate, and dislodge, the assumptions that lie behind these restrictions. Instead, it takes these assumptions as given and works within them, to argue for more expansive rights.

The Presumption of Motherhood

The Act is premised on two fundamental assumptions.

First, the Act views women primarily as mothers, and pregnancy as natural and inevitable. This is indicated by provisions of the Act which allow abortions only under exceptional, adverse circumstances, suggesting that the default option for women is to continue with their pregnancy. It could be argued that women’s right to an abortion is restricted to exceptional situations in order to balance the interests of the woman against interests of the fetus. If so, the present framing of the Act implies that in exceptional, adverse circumstances, the interests of the woman take precedence over that of the fetus. However, in the absence of such circumstances, the interests of the fetus override that of the woman.

This framing assumes one of two things (or both): (a) in the absence of exceptional circumstances, women are happy to continue their pregnancy; and/or (b) in the absence of exceptional circumstances, women should be expected to continue their pregnancy. In case of (a), it is assumed that there would be no harm to women’s interests because women, under ordinary circumstances, would want to continue their pregnancy (and be mothers). For instance, in the landmark decision of Suchitra Srivastava v Chandigarh Administration, the Supreme Court observed, ‘the termination of pregnancy has never been recognised as a normal recourse for expecting mothers’. Since there is no harm to women’s interests, fetal interests are given priority. In case of (b), it is assumed that the harm to women’s interests from continuation is lesser than the harm to fetal interests from termination. This is premised on the assumption that even if the individual woman does not desire the pregnancy, pregnancy is natural and inevitable, something all women go through. Therefore, in the absence of exceptional circumstances, the harm from continuation of an unwanted pregnancy is minimal. As a result, in these circumstances, the harm to women’s interests from continuation of pregnancy is considered to be lesser than the harm to fetal interests from termination. Thus, the Act starts from a position where women are seen first and foremost as mothers, and pregnancy as natural, inevitable, and desired by all women. This assumption then influences the assessment of harm and balancing of interests carried out by the Act. This is not to say that no other considerations influence the balancing, but to highlight that the current framing of the Act suggests that presumptions regarding women’s role as mothers is one such consideration.

The petition appears to resist this narrative by asking for abortion on demand within the first trimester. However, a close reading of the petition reveals that the reason behind this claim is not the recognition that it is ‘normal’ for women not to be mothers, and opt for termination. Instead, the claim is made because the health risk to women from continuation of pregnancy is more than the health risk accompanying termination during the first trimester. Thus, even in asking for abortion on demand within the first trimester, the petition fails to dislodge the gendered assumption underlying the Act which views women as mothers, and pregnancy as natural and inevitable; instead, it merely works to expand the instances of termination permitted within this narrative.

A Strand in a Gendered Web

Second, the Act views abortion as an ordinary medical procedure, with no larger social import. This is obvious in the very title of the Act, which refers to ‘medical termination of pregnancy’, rather than ‘abortion’; the Statement of Reasons or Objects of the Act which describes abortions as ‘health measures’ to alleviate ‘danger to the life or risk to the physical or mental health of the woman’, and prevent ‘wastage’ of her life; the predominance given by the Act to the opinion of medical professionals, viewing them as co-decisionmakers along with the women; and, the reliance placed by courts on the decisions of Medical Boards—set up to weigh the risk of continuation of pregnancy against the medical risk of termination—in allowing abortions beyond 20 weeks, under Section 5 (see here, here and here). Women’s decisions to undergo an abortion are overridden if the Medical Board opines that the continuation of pregnancy is ‘less hazardous’ than termination at that stage (see here). Thus, the medical risk of termination becomes the primary consideration while making a decision under the Act.

This tendency to prioritise the medical risk of termination over other considerations, including the woman’s choice, is evident in the petition as well. For instance, the petition constructs the right under Article 21 in the following terms: ‘Where the termination of pregnancy itself does not involve risk to the physical life of the woman, her right to choice…[has] to be respected’. Similarly, as mentioned above, the petition argues for abortion on demand within the first trimester only because ‘there is no dispute [that] the risks involved when pregnancy is carried to full term far outweigh the minimal and negligible risks involved when pregnancy is terminated in the first trimester. Keeping this in view, the State cannot make any law restricting the right of the woman seeking abortion’ during the first trimester. In this sense, the petition follows the Act in viewing abortion primarily as a medical procedure, by respecting women’s choice only when medical opinion favours it.

However, this understanding of abortion is reductive, and ignores that at the centre of abortion lies a group of persons—women—who have been historically oppressed on account of their reproductive ability. The fact that women can reproduce is translated into the essentialist, universal assumption that women must. These gendered expectations, however, do not end at the moment of birth. Women are not only expected to bear children but also assume primary responsibility for their care. This largely unilateral responsibility of child-care has confined women to the domestic sphere, and maintained the distinction, and the hierarchy, between the public and private spheres. Motherhood and paid employment are constructed as incompatible. Several empirical studies demonstrate that the presence of young children in the house is associated with lower female workforce participation in India, with women quitting work after childbirth (see here and here). At the same time, childcare—women’s contribution in the home—has a low status in society. Though ‘reproduction entails incredible liabilities and workload, [it] is still considered to be of lesser value compared to men’s engagement in production that yields market value’. In this sense, pregnancy is not an isolated nine-month episode in the life of a woman; it is instead located within gendered structures of power, which require women to bear children and raise them, compelling them to sacrifice other opportunities they value, while, at the same time, devaluing their labour. Articles 14 and 15 provide constitutional grounding to this perspective on pregnancy. However, the role of these provisions is outside the scope of the specific argument being made by this post, and is thus not developed.

Against this context, abortion cannot be viewed as just another medical procedure. Instead, it should be seen as allowing women to take back control over their bodies and lives—control they have been historically denied, and on the basis of which they have been disadvantaged. This recognition is absent within the petition, which argues for permitting women to undergo termination only as long as there is no threat to their life or health. In this manner, the petition places abortion on the same page as other medical procedures, where the opinion of the medical professional is given overriding priority. Through this, women seeking abortions are seen merely as patients seeking medical care, stripping away the gendered social context of reproduction in India.

Thus, the Act is deficient because it is premised on two underlying assumptions: women as mothers, and abortion as an ordinary medical procedure. The petition, in challenging the Act as restrictive and unconstitutional, does not dislodge these assumptions, and shift abortion outside these narratives. Instead, it retains the framing offered by these assumptions, and therefore constructs a limited right to medical termination of pregnancy. This might be an intentional strategy, to ensure that the claim has a greater chance of being accepted by the court. However, it is important to question whether in making this concession and failing to interrogate these assumptions, the petition, even if granted, will result in real and effective reproductive control for women.

The Remedy

The remedies sought by the petition include striking down as unconstitutional Section 3(2)(a) to the extent it makes termination during the first trimester conditional; Section 3(2)(b) to the extent that it imposes a 20 week limit on termination in case of grave mental or physical injury to the woman, or fetal abnormality; and, Section 5 to the extent that termination beyond 20 weeks is permitted only when ‘immediately necessary’ to save the ‘life’ of the pregnant woman. If the approach I propose is adopted, and the fundamental assumptions underlying the Act are challenged, certain remedies—such as abortion on demand within the first trimester—would remain the same. Others could, however, differ. If the balancing exercise does not start with viewing women as mothers, and pregnancy as natural and inevitable, then the balance struck between the woman’s and fetal interests could change. Similarly, if abortion is not viewed as an ordinary medical procedure, a case could be made for why the choice of a woman who wishes to undergo termination even after being informed of the risk to health or life needs to be respected. These would change the very structure of the Act, by questioning the imposition of conditions and time limits. However, even if the specific remedies do not change, by challenging the assumptions underlying the Act, the petition, if accepted, could shift the discourse on abortion, and set us on the path towards meaningful reproductive choice for women.

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

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

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

Proportionality, Burdens, and the Strange Disappearance of Facts 

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

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

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

First, a range of possible alternatives to the measure employed by the Government must be identified. Secondly, the effectiveness of these measures must be determined individually; the test here is not whether each respective measure realises the governmental objective to the same extent, but rather whether it realises it in a ‘real and substantial manner’. Thirdly, the impact of the respective measures on the right at stake must be determined. Finally, an overall judgment must be made as to whether in light of the findings of the previous steps, there exists an alternative which is preferable. (paragraph 124)

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

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

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

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

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

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

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

The manner in which malpractices have been committed in the past leaves us to hold that apart from the system of unique identity in Aadhaar and authentication of the real beneficiaries, there is no alternative measure with lesser degree of limitation which can achieve the same purpose. In fact, on repeated query by this Court, even the petitioners could not suggest any such method. (paragraph 280)

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

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

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

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

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

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

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

Reasonable Expectation of Privacy

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

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

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

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

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

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

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

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

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

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

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

The Return of the Minuscule Minority, and Issues of Evidence

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

The Majority’s response is at paragraph 317:

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

And:

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

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

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

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

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

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

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

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

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

Conclusion

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

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

This is a constitutionalism of convenience, not of principle.

The Supreme Court’s Right to Privacy Judgment -III: Privacy, Surveillance, and the Body

(Author’s Note: This is an adapted version of a piece first published today morning in the Business Standard.)

In the previous two essays, I discussed the conceptual foundations of the right to privacy judgment, as well as the theoretical underpinnings of privacy endorsed by the Court. in the next three essays, I shall consider the three aspects that the judgments identify at the heart of the concept of privacy: the body, personal information, and decisional autonomy.

First, the body. As Justices Sachs and O’Regan of the South African Constitutional Court observed, the “inviolability and worth of the human body” is central to any formulation of privacy. The concern for bodily integrity comes through most clearly in Justice Chelameswar’s opinion, when he speaks about “freedom from unwarranted stimuli” (para 36), corporal punishment, and forced feeding (para 38). The phrase “unwarranted stimuli” recalls the 2010 judgment of the Supreme Court in Selvi vs State of Karnataka where, in striking down police interrogation techniques such as narco-analysis and brain-mapping, the Court provided its most detailed and considered analysis of bodily (and mental) privacy under Articles 20(3) and 21 of the Constitution. I have examined the judgment in Selvi elsewhere, and will not rehearse the arguments here, apart from noting that, in the operative order of Court, Selvi stands affirmed as correctly decided.

Privacy’s concern with the body, however, goes beyond direct, physical interference by the State. Consider, for example, what the journalist Glenn Greenwald writes in No Place to Hide, the book that chronicles Edward Snowden’s unmasking of the American mass surveillance regime:

“Only when we believe that nobody else is watching us do we feel free – safe – to truly experiment, to test boundaries, to explore new ways of thinking and being, to explore what it means to be ourselves… for that reason, it is in the realm of privacy where creativity, dissent, and challenges to orthodoxy germinate. A society in which everyone knows they can be watched by the state – where the private realm is effectively eliminated – is one in which those attributes are lost, at both the societal and the individual level.”

Fifty-five years ago, Justice Subba Rao understood this when he penned his powerful dissent in Kharak Singh vs State of UP. Recall that Kharak Singh was about police surveillance of a “history-sheeter”, which included tracking his movements. Striking down the regulations in their entirety, Subba Rao J observed that “if a man is shadowed, his movements are obviously constricted… [the] movement of an automation. How could a movement under the scrutinizing gaze of the policemen be described as a free movement? The whole country is his jail… the petitioner under the shadow of surveillance is certainly deprived of this freedom [the freedom of movement]. He can move physically, but he cannot do so freely, for all his activities are watched and noted. The shroud of surveillance cast upon him perforce perforce engender(s) inhibitions in him and he cannot act freely as he would like to do.”

And:

“Assuming that Art. 19(1)(d) of the Constitution must be confined only to physical movements, its combination with the freedom of speech and expression leads to the conclusion we have arrived at. The act of surveillance is certainly a restriction on the said freedom. It cannot be suggested that the said freedom is also bereft of its subjective or psychological content, but will sustain only the mechanics of speech and expression. An illustration will make our point clear. A visitor, whether a wife, son or friend, is allowed to be received by a prisoner in the presence of a guard. The prisoner can speak with the visitor; but, can it be suggested that he is fully enjoying the said freedom? It is impossible for him to express his real and intimate thoughts to the visitor as fully as he would like.”

At the heart of Justice Subba Rao’s dissenting opinion was the crucial insight that surveillance does not always leave perceptible traces in the physical world. Rather, it works insidiously upon the minds of its targets, channeling their actions, their movements, their associations, and their very thoughts into preset grooves and patterns, killing dissent and heterodoxy, and imposing a stifling, psychological conformism upon society. Nor was this opinion outlandish or extreme: from Bentham’s panopticon to Foucault’s disciplinary regimes, the psychological impact that surveillance wreaks upon the human body has been well-known and thoroughly studied.

The disagreement between Justice Subba Rao and the Majority opinion in Kharak Singh is commonly understood to be a disagreement between the “silos approach” to Part III (flowing from A.K. Gopalan, and upheld by the majority), and the integrated approach that read fundamental rights together (espoused by Justice Subba Rao). However, the disagreement actually went much deeper. The majority judges rejected root and branch Justice Subba Rao’s view that surveillance was constitutionally suspect because of the psychological impact it had upon its targets. According to the majority:

“In dealing with a fundamental right such as the right to free movement or personal liberty, that only can constitute an infringement which is both direct as well as tangible and it could not be that under these freedoms the Constitution-makers intended to protect or protected mere personal sensitiveness….  Learned Counsel suggested that the knowledge or apprehension that the police were on the watch for the movements of the suspect, might induce a psychological inhibition against his movements but, as already pointed out, we are unable to accept the argument that for this reason there is an impairment of the “free” movement guaranteed by sub-cl. (d).  Art. 19(1)(d) has reference to something tangible and physical rather and not to the imponderable effect on the mind of a person which might guide his action in the matter of his movement or locomotion.”

The core disagreement between the majority and Justice Subba Rao, therefore, was not merely an interpretive dispute about how to read the Constitution, but a much deeper and more fundamental clash: was the Constitution’s protection of the human body limited to physical and observable constraints, or did the Constitution protect something more intangible as well – that “realm of privacy where creativity, dissent, and challenges to orthodoxy germinate”?

Puttaswamy’s overruling of Kharak Singh, therefore, opens up a further question. Was Kharak Singh overruled only in a narrow sense – i.e., to the limited extent that the “silos approach” was held to be no longer good law? Or was it overruled in the broader sense, in its very understanding of what fundamental rights are about?

In my view, a close reading of all six judgments makes it clear that the Kharak Singh majority was overruled in the broader sense, and Justice Subba Rao’s dissent was resurrected in its entirety. Consider, for example, Justice Chandrachud’s observation, in paragraph 168 of his opinion:

“Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.”

This is not mere rhetoric. A few lines before this, Justice Chandrachud referred to the individual’s right to “stand against the tide of conformity in creating a zone of solitude.” (para 168) In his separate opinion, Justice Chelameswar warned of “attempts by governments to shape the minds of subjects… conditioning the thought process by prescribing what to read or not to read… what forms of art alone are required to be appreciated leading to the conditioning of beliefs.” (para 37) Justice Bobde defended the idea of a “zone of internal freedom in which to think.” (para 22) And perhaps most bluntly of all, Justice Kaul observed that “knowledge about a person gives a power over that person… privacy is key to the freedom of thought.” (para 52) An overarching cast was given to this by Justice Nariman who, throughout his judgment, referred to Justice Subba Rao’s opinion as one of the “three great dissents” in the history of Indian constitutional law, making it clear that he was referring to – and resurrecting – that dissent in its richest, deepest, and most comprehensive sense.

What all the separate opinions understood was that without privacy, the core constitutional freedoms that we take for granted will cease to be meaningful. Justice Subba Rao’s eloquent description of a shadowed man to whom the entire country was a prison tells us how important privacy is to the freedom of movement. And it is more than that. We will hesitate to associate with unpopular groups espousing unpopular causes, if we know that we are being watched. There is so much that we will not say to each other if we know that, one day, it could be made public. We will self-censor, draw ever more constricting lines in the sand, and suffocate ourselves with our own caution. We will censor others, warning them not to speak to much, be too radical, or think too differently.

On the Kharak Singh majority’s view, none of that is of constitutional concern. But fortunately, that is no longer the law of the land. Five and a half decades after his solitary dissent, Puttaswamy has ensured that Justice Subba Rao’s insight is now constitutional wisdom. As the above observations show, one of the crucial features of the right to privacy judgment is the understanding that democracy is founded on pluralism and diversity, and pluralism and diversity begin in the mind. Privacy is important not because people have something to hide, but because privacy gives people a sanctuary where they can think, be, and live, in opposition to the dominant cultural, social, and political norms of the time. Privacy allows people a space where they can refuse to conform. And it is in that space where liberty flourishes, the liberty to fashion alternative ways of life, which – ultimately – form and take shape in the public sphere, allowing society always to renew itself.

As Meenakshi Arora, one of the senior counsel for the petitioners observed during oral arguments, to live without privacy is akin to living under the shadow of a perpetual, general warrant in your name, issued by the State – a warrant that chills speech, chills association, chills movement, and chills thought; a perpetual warrant that can only produce the kind of conformity that Justice Jackson, the great American judge, likened to the “unanimity of the graveyard.”

In making the body central to the right to privacy, Puttaswamy has performed the crucial role of making cases like Selvi – which were all about limiting the brute, coercive power of the State over the human body – constitutionally secure. But it has also performed an even more crucial role in giving firm, constitutional footing to the challenges to State surveillance, which are bound to be at the heart of the legal battle between the individual and the State in the years to come.

 

The Constitutional Challenge to Aadhaar/PAN – III: The Petitioners’ Rejoinder and the Issues before the Court

In the last two posts, we examined the case of the Petitioners and that of the Union of India before the Supreme Court in the constitutional challenge to S. 139AA of the IT Act. In this post, we shall conclude by discussing the Petitioners’ rejoinder, and outlining the issues that the Court must adjudicate.

Mr Shyam Divan’s Rejoinder

On Article 14 and the Collision Between the Aadhaar Act and S. 139AA

Mr Divan argued that the entire case rested upon the Attorney-General’s argument that S. 7 of the Aadhaar Act was virtually mandatory – an argument, he stated, he had heard for the first time during these proceedings. Mr Divan contended that the only way in which the Attorney-General had managed to reconcile the Aadhaar Act and S. 139AA was by arguing that S. 7 was mandatory. If that argument failed, then the entire edifice would crumble, and S. 139AA would have to be struck down.

Mr Divan argued that the entire scheme of the Aadhaar Act made it clear that it was voluntary. This was evident from the Statement of Objects and Reasons, from Section 3, which stipulated that “every resident shall be entitled” to an Aadhaar number. It was also evident from S. 3(2), which required the enrolling agency to inform the individual about the manner in which the information would be used and S. 8(2)(a), which required requesting entities to “obtain consent” . And S.7 only permitted the Government to make Aadhaar mandatory as a condition for receiving subsidies which were financed out of the Consolidated Fund of India. Mr Divan argued that the Attorney-General’s reliance on S. 57 was incorrect, because S. 57 clearly stated that it was subject to the rest of the Aadhaar Act. No coercive measures were contemplated by the Act. Furthermore, the voluntariness of Aadhaar was also evident from the enrolling form, which specified consent; from the UIDAI’s own website, which used the phrases “entitled to voluntarily obtain an Aadhaar number“, and “any person may choose to use Aadhaar“; and from the UIDAI’s advertisements.

Aadhaar, therefore, was a voluntary scheme. What flowed from this, according to Mr Divan, was that a legislative scheme which divided people into two categories – those who choose to have an Aadhaar, and those who don’t – and then burdened the latter category, was discriminatory on the face of it. And this was precisely what S. 139AA did. By dividing taxpayers into those who had freely chosen to get an Aadhaar number, and those who hadn’t, and by forcibly requiring the latter to get an Aadhaar, S. 139AA violated Article 14 because its very objective was discriminatory. Mr Divan argued that the petition should succeed on this count alone.

Compelled Speech 

Mr Divan clarified that his point about compelled speech was simply that, by parting with her biometric details and iris scan – the most personal of all information about oneself – the individual was being compelled to “speak” – and that too, not to the State, but to private enrolling agencies. Mr Divan conceded that there might be different considerations if the State was doing the collecting itself; but how, he asked, could the State compel the individual to “speak” to another individual with whom they did not wish to have any interaction? Reading out the list of private enrollers, Mr Divan argued that the entire architecture of Aadhaar – which required me to go and provide my most sensitive information not to the State, but to “Pankaj Shah of Bits and Bytes Co.” violated Article 19(1)(a).

Bodily Integrity, Compelling State Interest, Narrow Tailoring 

The Union of India’s entire argument – Mr Divan stated – essentially boiled down to “what’s the big deal about this? Other laws require you to part with personal information too.” To this, he responded that there could be laws which infringed bodily integrity in order to protect and preserve life: this is why there were laws mandating helmets and seatbelts. Likewise, there could be laws stipulating narrowly-tailored exceptions to the right, in service of a compelling State interest, such as passports (where an urgent need might arise to identify a person in case of an accident abroad). That, however, was a far cry from a centralised database, which – according to the Union’s own affidavit – involved seeding of information. This was also what distinguished Aadhaar from a provision such as S. 32A of the Registration Act. The Registration Act required you to give your fingerprints, but that was for your benefit and was only on the document; it did not go into a centralised database, with all the accompanying possibilities of misuse and data theft. Similarly, the Census Act accorded a very high degree of protection to census information: inspection of census registered, for instance, was prohibited. What this showed was that when the coercive power of the State is used to invade bodily integrity, there must be a consequently high degree of protection – something which Aadhaar, with the possibility of seeding, did not have.

Furthermore, Mr Divan argued, the State had failed to make out a compelling interest. The argument about “giving people an identity” was flawed, because 99.97% of Aadhaar applicants already had pre-existing identity documents. The logic of duplication was also flawed, because official information showed the presence of 1,69,000 duplicate Aadhaar numbers. Consequently, the large-sale infringement of bodily integrity in this case could not be sustained by the goal the State was trying to achieve.

Competence and Deference 

Mr Divan reiterated his argument that under the constitutional scheme, there was an implied limitation upon the State’s power to legislate when it came to the human body: only narrowly-tailored infringements, in service of a compelling interest, were permitted. Wholesale taking of biometric details and iris scans, and storing them in a centralised database for the purposes of seeding was neither narrowly-tailored, nor in service of a compelling interest. Mr Divan also pointed  out that this case had raised serious questions pertaining to the violation of Articles 14, 19, and 21 of the Constitution. Consequently, the Court ought not to follow its usual policy in dealing with “fiscal statutes”, and defer to legislative wisdom; although 139AA was a tax amendment, its nature was anything but purely fiscal.

Mr Divan concluded by arguing that the Union’s three-pronged case – that there was no right to privacy, that fingerprinting and iris scans were no more intrusive than a photograph, and that Aadhaar was mandatory – if accepted, would overturn the entire relationship between the individual and the State, concentrating great power in the hands of the latter at the expense of the former. That would result in a tremendous compromise of civil liberties. He would urge the Court to strike down S. 139AA.

Mr Datar’s Rejoinder

Legislative Overruling of Judicial Orders

Mr Datar argued that before the Supreme Court, the Union of India had always reiterated that Aadhaar was voluntary. On 11th August 2015, and then again on 15th October 2015, the Supreme Court itself had stated that Aadhaar could not be made mandatory. Now, it was open to Parliament to legislate in a way that took away the basis of these orders. Parliament, for instance, could simply stipulate, in a law, that henceforth, every individual was obligated to obtain an Aadhaar Number. However, Parliament had not done that. Parliament had simply enacted S. 139AA, which made it mandatory to quote an Aadhaar number while filing Income Tax returns. That did not amount to taking away the basis of the Supreme Court orders. Mr Datar took the example of a case in Bangalore, where notwithstanding building regulations prohibiting a height of more than 80m, a person had built up to 100m. The case was taken to Court, and he lost. However, before his building could be demolished, the Regulation was changed to make the legal height 110m, and applicable retrospectively, from the time that construction had commenced. That, argued Mr Datar, was an instance of how the basis of a judgment could be altered, and that was the only way known to law in which the Parliament or Executive could overcome a contrary court order. Similarly, in the Supreme Court’s recent judgment banning liquor within a specified distance from highways, some states had responded by denotifying their highways, and turning them into ordinary roads. That was permissible, because it removed the basis of the Court’s judgment; however, those states could not simply have said, “notwithstanding the Supreme Court judgment, alcohol will continue to be sold in these shops.” S. 139AA effectively amounted to state action of the latter kind.

Justice Sikri pointed out that what was unique about this case was that the Court’s earlier orders had been passed when Aadhaar was merely an executive scheme, and no law existed. So could it be said that the orders even applied to a law in the first place? Mr Datar responded by saying that in view of Ram Jawaya Kapoor’s Case, the executive and legislative powers of the State were co-extensive. Consequently, whether the original orders applied to an executive scheme, or to a law, the point remained that they could only be overcome through the specific mechanism outlined above. Justice Sikri and Mr Datar agreed that the Court was dealing with this kind of a situation for the first time in its history, and would have to lay down the law on the basis of first principles. Justice Sikri then asked what the “basis” of the earlier Court orders was, that the Parliament could have legislated to take away. Mr Datar responded that the basis was that since the validity of Aadhaar was yet to be tested on the constitutional anvil, in the meantime it could not be made mandatory for anything but a specified number of services. Consequently, the only way of removing this basis was to pass an Act that stated “Parliament may make Aadhaar mandatory…” Mr Arghya Sengupta interjected to state that S. 7 of the Aadhaar Act did this already. Mr. Datar replied that S. 7 did nothing of the sort.

Legislative Dichotomy

Mr Datar then pointed out that S. 139AA of the Aadhaar Act did not contain a non-obstante clause (“notwithstanding anything contained in any other law for the time being in force…). In the absence of a non-obstante clause, there was a clear collision – or a dichotomy – between the Aadhaar Act and S. 139AA, a dichotomy that could be resolved only by striking down S. 139AA. Once Parliament had passed a law which made Aadhaar a right – it could not then pass a contrary law that made Aadhaar its jural opposite –  a duty without a non-obstante clause. Mr Datar read out numerous parliamentary statements – including one by Mr Jaitley – to demonstrate that at its core, Aadhaar was meant to be voluntary, and also pointed to the utter lack of debate in Parliament before passing S. 139AA.

Article 14

Mr Datar argued once again that the State had entirely failed to make out a rational nexus between making Aadhaar compulsory for individual taxpayers, and its stated goal(s) of preventing duplication, preventing black money, and preventing terrorism. He pointed out that only 0.4% of PAN Cards had been found to be duplicate, and that these figures from 2006. In response to Mr Sengupta’s interjection that this was only 0.4% of a very small sample, Mr Datar responded that that was exactly the point of statistical sampling. He observed there was no data after 2006, and asked on what basis the State had decided to take such a huge step – of mandatory Aadhaar – without analysing data, or sending the matter for consideration by a Parliamentary committee. The reason for the discrepancy between the number of PAN Cards and the number of taxpayers was simply that, after 1998, PAN began to be used for a wide number of transactions that had nothing to do with tax. Consequently, the Union had failed to discharge its burden under Article 14 that there existed a rational nexus between making individuals quote their Aadhaar numbers while filing tax returns, and checking duplication, tax evasion, or black money.

Mr Datar also addressed the Attorney-General’s arguments under FATCA, arguing that FATCA had nothing to do with Aadhaar numbers at all. Mr Arghya Sengupta interjected, saying that FATCA required handing over PAN numbers to US authorities, and that it would be embarrassing if duplicate PANs were handed over. Mr Datar pointed out that this had nothing to do with rational nexus under Article 14.

Article 19(1)(g) 

Mr Datar argued that the consequences of not having a PAN Card effectively locked an individual out of a number of economic transactions that were a lifeline (especially) for small traders and entrepreneurs. Apart from crores of individual taxpayers, it would be this class that would be affected the most: their entire economic life would grind to a halt. Consequently, for those who did not wish to get an Aadhaar number, S. 139AA was a serious infringement of their right to carry on trade and business under Article 19(1)9(g).

Now, if a law violated Article 19(1)(g), it could only be justified under Article 19(6): i.e., if it was a reasonable restriction in the interests of the general public. The correct test for assessing reasonableness had been laid down by Justice Sikri himself, in Modern Dental College vs State of MP (discussed on this blog here), and it was the test of “proportionality”:

“… a limitation of a constitutional right will be constitutionally permissible if: (i) it is designated for a proper purpose; (ii) the measures undertaken to effectuate such a limitation are rationally connected to the fulfillment of that purpose; (iii) the measures undertaken are necessary in that there are no alternative measures that may similarly achieve that same purpose with a lesser degree of limitation; and finally (iv) there needs to be a proper relation (‘proportionality stricto sensu’ or ‘balancing’) between the importance of achieving the proper purpose and the social importance of preventing the limitation on the constitutional right.” (paragraph 53)

Mr Datar pointed out that for 0.4% of duplicate PANs, 99.96% of taxpayers were being forced into Aadhaar. How, he asked, was this proportionate? In the balancing of interests between duplicate PANs and the freedom to do business, proportionality – in this case – clearly weighed in on the side of the former.

Mr Datar concluded by stating that this was a very serious case, with far-reaching consequences for civil liberties. Responding to the Attorney-General’s contention that all that had happened was that an extra “A” had been added to S. 139A, making it “Section 139AA”, he urged the Court to stop the encroachment on individual rights at its first step. He ended by quoting Justice Douglas of the US Supreme Court:

“As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air – however slight – lest we become unwitting victims of the darkness.”

Issues before the Court

The Supreme Court has to resolve the following issues:

(a) Did S. 139AA “take away the basis” of the Supreme Court’s earlier orders on Aadhaar being voluntary, or is it an impermissible legislative overruling of a binding Court order?

(b) Does S. 139AA violate bodily integrity under Article 21? If it does, then does it serve a compelling State interest? And is it narrowly-tailored? Is it analogous to other laws such as the Registration Act, the Census Act, or the Passports Act, or is it much broader and far-reaching then those statutes? When deciding this issue, the Court will also have to decide how much to defer to the Union’s claims on duplication and black money, in view of the fact that the Petitioners strongly contested the validity of these claims. One interesting aspect here is how the Court will choose to allocate burdens of proof: will it, if it finds an infringement of bodily integrity, hold that the State must then justify it on the touchstone of compelling interest and narrow tailoring?

(c) Does S. 139AA violate Article 19(1)(g)? If so, is it proportionate, in view of statistics on the number of duplicate PANs and the existence of duplicate Aadhaars?

(d) In view of the fact that the Aadhaar Act makes Aadhaar voluntary, does S. 139AA fail the discriminatory purpose prong of Article 14 by classifying taxpayers into those who have voluntarily taken an Aadhaar number, and those who haven’t?

(e) Has the State shown a “rational nexus” under Article 14, with its goals of preventing black money and duplication? Here again, the issue of deference will become decisive: will the Court hold 139AA to be an economic statute, and take the Union’s claims at face value? Or will it, in view of the contentions involving fundamental rights, subject the Union to a stricter scrutiny in justifying its contention about Aadhaar being the panacea for preventing tax evasion?

(f) Does 139AA amount to compelled speech under Article 19(1)(a)?

(g) Does 139AA violate the principle of informational self-determination under Article 21?

(e) Is there an implied limitation upon legislative competence as far as laws concerning the human body are concerned? If yes, then does 139AA violate this implied limitation?

Options before the Court

The Court may do one of the following six things:

(a) Strike down S. 139AA as unconstitutional.

(b) Accept Mr Divan’s argument, and hold that S. 139AA is voluntary by reading “shall” as “may”.

(c) Accept Mr Datar’s argument and “harmoniously construe” S. 139AA and the Aadhaar Act by holding that those who have already procured and Aadhaar number might be required to quote it, but those who haven’t cannot be compelled to enroll.

(d) Find that issues or privacy are essential to decide the case, refer the matter to the pending Constitution Bench, and stay its operation in the meantime.

(e) Refer without staying

(f) Uphold S. 139AA entirely, but leave it open to the Petitioners to challenge it on the grounds of privacy, once the Constitution Bench finally decides the main Aadhaar challenge.

 

The Constitutional Challenge to S. 139AA of the IT Act (Aadhaar/PAN) – II: The Union’s Arguments

In the previous post, I detailed the petitioners’ arguments in the constitutional challenge to S. 139AA of the Income Tax Act, which effectively makes enrolling for an Aadhaar number compulsory for taxpayers. After Petitioners completed their arguments, the Union of India – through the Attorney-General, Mr Arghya Sengupta, and Mr Zoheb Hossain – responded in defence of S. 139AA. Mr Shyam Divan and Mr Arvind Datar then replied for the Petitioners. In this post, I shall provide a brief account of the arguments, isolate the issues that the two-judge bench of the Supreme Court must address, and outline the possible outcomes.

The Attorney-General’s Arguments: A Limited Right to Bodily Integrity

The Attorney-General argued that the Petitioners’ Article 21 challenge to S. 139AA – focusing on bodily integrity – was nothing but a camouflaged privacy challenge, which the Court could not examine at this stage (see previous post on the dropping of privacy arguments from the present proceedings). However, assuming that there was an independent right to bodily integrity under Article 21, the thrust of the Attorney-General’s argument was that this right could be limited by the State – and in fact, was limited by the State in a number of other domains, in ways equally, or more, intrusive than Aadhaar. For instance, Section 32 of the Registration Act, 1908, required all ten fingerprints as a pre-requisite for registering property. People routinely subjected themselves to biometric collection while traveling abroad. More broadly, the Attorney-General argued that Aadhaar only did something that was already normalised and routinised in society: in an era of ubiquitous photography, what was so unacceptably intrusive about an iris scan? Given the ubiquity of online transactions through smartphones, what was so intrusive about having to part with one’s data for the purpose paying taxes? To accede to the Petitioners’ arguments would be to set a legal standard that could only be fulfilled by hermits living alone in the mountains, and not citizens part of the modern, digital economy.

Although the Attorney-General did not specifically use the term, what he appeared to be doing was borrowing the American doctrine of “reasonable expectation of privacy“: that is, the scope of one’s right to privacy – or, in the language in which this case was argued – “bodily integrity” – is determined by what is socially sanctioned and understood as reasonable at any given time. Briefly put, the Attorney-General’s case was that Aadhaar calls upon citizens to give up only that which they voluntarily and regularly give up as part of their daily lives; consequently, there was no constitutional violation to start with.

The Attorney-General then argued that in any event, citizens had no absolute rights over their bodies. In this case, there was a larger public interest that justified the level of infringement. For instance, the Medical Termination of Pregnancy Act regulated the conditions under which a woman could abort her foetus. Random breath checks for drunken driving were required in the interests of road safety. At this point, Justice Sikri interjected, and wondered whether those examples were analogous, because in those cases, the restrictions were clearly reasonable. To this, the Attorney-General replied that in the present case as well, there was a larger public interest: the effective and efficient collection of taxes, which was an integral part of life in an ordered society.

To substantiate this argument, the Attorney-General took the Court through the history of PAN Cards, and the perceived need to replace them with Aadhaar. He argued that on a random verification of 0.2% of all PAN Cards, a number of duplicate PANs were thrown up. Besides, over the previous twenty years, the existence of shell companies, the presence of directors in multiple companies, and multiple PAN holders, had all come to light. India was a highly tax non-compliant society. Furthermore, in addition to tax dodging, there were also problems of black money, which was used to finance terrorism. For all these reasons, it was important to develop a system in which identification could not be faked. The Attorney-General submitted that the only way to accomplish this was to digitise fingerprints and iris scans, and keep them for posterity. At present, fingerprints and iris scans could not be duplicated, and consequently, the shift to Aadhaar was necessary. Furthermore, this data would be encrypted and stored in a centralised server, and shared only with the police in case it was needed for resolving a crime.

Aadhaar itself, the Attorney-General submitted, was originally conceputalised to prevent leakages in the public distribution system, in payment of wages under the NREGA, in the payment of pensions, and so on. He argued that with Aadhaar, more than Rs 50 crores had been saved by plugging leakages. Consequently, even if there was some infringement of individual rights, it was balanced by the larger public goal, as mandated – according to the Attorney-General – by Rousseau’s conceptualisation of the social contract. Individuals were in a contractual relationship with the State from their birth, reliant upon it for a host of benefits; how then could they refuse to pay their taxes in the manner mandated by the State?

Indeed – according to the Attorney-General – the Supreme Court had itself sanctioned the use of Aadhaar in PDS schemes in 2011, and in SIM card verification just a couple of months before. Furthermore, an accurate identification system such as Aadhaar was needed to ensure that India was in compliance with its obligations under international agreements such as the FATCA. For all these reasons, the Attorney-General submitted that Aadhaar was entirely within the parametres of Article 21 of the Constitution.

He concluded his arguments by submitting that within the contours of the social contract, nobody had a right to make themselves invisible: “you may want to be forgotten. But the State does not want to forget you.

Returning to this argument at a later point in his submissions, the Attorney-General also argued that a number of Supreme Court cases – such as Kathi Kalu Oghad – had held that compelling persons accused of a crime to provide their fingerprints had been held not to violate the constitutional right against self-incrimination. So why couldn’t the State put in preventive measures to check tax dodging in advance? Justice Sikri interjected to say that the Kathi Kalu line of cases might not be apposite, because they involved accused in criminal cases; surely it was not right to treat the entire country as presumptively accused of tax dodging. The Attorney-General replied that he was only arguing that the right to bodily integrity was not absolute – it could be taken away in certain cases. “Which cases, is the question“, Justice Sikri responded. “Even your life can be taken away under Article 21“, the Attorney-General continued. “But only with due process,” Justice Sikri replied. “We must balance individual dignity with State interests.” The Attorney-General responded: “at the end of the day, if you can give your fingerprints for registering property, why can’t you give your fingerprints for this?

Still later in his submissions, the Attorney-General cited precedents from the American Supreme Court about urine testing for school athletes, DNA testing of a rape accused, and – perhaps paradoxically – Roe vs Wade – to reiterate that the right to bodily integrity was not absolute.

Article 19(1)(g)

The Attorney-General’s rebuttal to Mr Datar’s argument on Article 19(1)(g) was brief. He stated that there was no violation of Article 19(1)(g), and expressed surprise that in this day and age, someone was making a constitutional argument based on Article 19(1)(g).

S. 139AA and the Aadhaar Act

The Attorney-General submitted that there was no conflict between Section 139AA and the Aadhaar Act. Responding to Mr Shyam Divan’s submission that the coercive character of 139AA could not stand alongside the voluntary nature of Aadhaar, the Attorney-General argued that Section 7 of the Aadhaar Act was at least partially mandatory: the State could tell citizens “either you should have an Aadhaar Act, or you jolly well apply for it.” Furthermore, under S. 57 of the Aadhaar Act, Aadhaar could be used for purposes other than those stipulated in the Act itself. And in any event, he argued, Parliament’s power to prescribe uses for Aadhaar was plenary, and subject only to the Constitution. The Attorney-General added that the Aadhaar Act came built in with safeguards: Section 29, for instance, prohibited the sharing of information. True, there had been some leaks of late; but those leaks, he argued, had not come from the UIDAI, or the central government, but the Jharkhand state government; and in any event, biometric details had not been compromised – only bank account information had.

Parliamentary Legislation and Court Orders

The Attorney-General’s final argument was that whatever the status of the pre-2016 Supreme Court orders stipulating that Aadhaar could only remain voluntary, all these were overridden by subsequent legislation. There was no such thing as “legislative estoppel“. No Court could injunct Parliament from passing laws as it deemed fit. By passing the Aadhaar Act – and then s. 139AA – the Parliament had simply exercised its plenary powers, and passed validating legislation taking away the basis of the prior court orders.

The Attorney-General concluded his arguments by citing a World Bank Report praising the Aadhaar system. Everyone needed an identity, he argued. Many people in India had no identity. Aadhaar was a method to bring them into the mainstream, prevent exclusion, and guarantee them their dignity.

The Arguments of Mr. Arghya Sengupta: Article 14 and Proportionality

Continuing the case for the Union, Mr Arghya Sengupta argued that Mr Datar’s claim that 139AA violated Article 14 of the Constitution was incorrect, because Article 14 did not require the Court to undertake a proportionality analysis. He cited K.T. Plantations for the proposition that a proportionality test effectively amounted to judges substituting their wisdom for that of Parliament. Taking the Court through comparative law, Mr Sengupta submitted that traditional judicial review claims in the United Kingdom had never included a proportionality test. While the European Court of Human Rights did incorporate a proportionality analysis into its rights-analysis, this only caused greater confusion than resolution. Relying upon Lord Pannick and Lord Hoffman, Mr Sengupta submitted that “the reasons for not treating people equally often involve considerations of social policy.” Justice Sikri interjected to observe that equality claims in the United Kingdom – which didn’t have a Constitution – might be treated differently from how they were in India. Mr Sengupta responded that the broader point was that proportionality only entered the picture when some balancing of rights was involved. Article 14 only required the Courts to ask whether there existed a valid reason for treating people differently from one another. There was no question of balancing. In fact, Article 14 was not about “rights” at all; fundamentally, it was about “wrongs”. Mr Sengupta concluded this argument by citing Professor Rebecca Dixon for the proposition that even the proportionality test had begun to collapse into the traditional test, and argued for the retention of the traditional Indian test of intelligible differentia and rational nexus.

On the merits of Article 14 itself, Mr Sengupta argued that Mr Datar was incorrect in arguing that the disproportionate penalty for not complying with Article 139AA rendered it violative of Article 14. Relying upon the McDowell Casehe repeated his submission that proportionality could not be invoked to strike down a statute under Article 14. Nor could a statute be struck down on grounds of arbitrariness. Justice Sikri interjected that, by virtue of Mardia Chemicals, it might be possible to invalidate a statute on grounds of arbitrariness. In response, Mr Sengupta cited Rajbala vs State of Haryana, which had rejected the arbitrariness doctrine (for a previous discussion of this debate on this blog, see here; for an analysis of Rajbala, see here).

Coming to the traditional classification test under Article 14, Mr Sengupta opposed Mr Datar’s argument that by making Aadhaar compulsory only for individual assessees, S. 139AA violated the rational nexus test. He argued that, by definition, only individuals could have Aadhaar numbers (as opposed to companies, or HUFs). Consequently, Parliament had chosen to first focus on the problem of black money and tax evasion committed by individuals, and had brought in Aadhaar to check that. No enactment, Mr Sengupta argued, could completely solve a social problem. Parliament had decided to make a start with individuals, and at a future date, would devise ways for dealing with the other categories of assessees as well.

Justice Sikri said that he understood that there was no discrimination if companies were incapable of even having Aadhaar numbers. However, the question was why discriminate between two people, both of whom were willing to pay tax, if one of them was willing to enrol for an Aadhaar number, and the other was not. Mr Sengupta replied that the purpose of 139AA was not to discriminate, but to prevent duplication of PAN cards. So the discriminatory object test under Article 14 – as Mr Shyam Divan had argued – was inapplicable. In fact, much like in the US, when TIN was replaced by SSN, in future, the State might choose to replace PAN with Aadhaar entirely.

Conscientious Objection

Mr Sengupta submitted that Mr Divan calling his clients “conscientious objectors” who were being discriminated against was entirely misplaced. Citing texts on civil disobedience and conscientious objection, he argued that what Mr Divan was essentially arguing for was a license to break the law. You may not want to stand up for the national anthem, he pointed out, but that did not mean you could sit down. Justice Sikri observed that that might not be an entirely accurate framing; the petitioners had, after all, approached the Court to have the law struck down. Mr Sengupta replied that there could be conscientious objection to all kinds of laws, but that in itself did not make them discriminatory.

Informational Self-Determination

Mr Sengupta’s final argument was on informational self-determination. He submitted that there was no absolute right to informational self-determination. The State could – and did – collect a wide range of information from individuals: births, deaths, marriages. The information that the State required from its citizens was extensive, and nobody challenged it. In any event, Mr Sengupta argued, whatever right to informational self-determination – in the apparent guise of privacy – did exist, it would have to be conditioned and defined by cultural factors. India was very different from Germany, from where Mr Divan had drawn his doctrine. There would have to be devised an Indian doctrine of informational self-determination, drawn from Indian conditions. Citing Mark Tushnet on the dangers of comparative law, Mr Sengupta argued against “importing” the conception of privacy into India.

At this point, Mr Divan interjected and said that his argument was not a privacy argument, but an argument about his right to his body. Justice Sikri observed that there might be overlaps between the two concepts. Mr Divan responded that there might indeed be overlaps, but that his right to bodily integrity was not subsumed within his right to privacy. Mr Sengupta argued that it was not open to this Court to draw a distinction between privacy and informational self-determination; given that the very question of privacy was pending before the Constitution Bench, it was for the Constitution Bench to decide what the scope of privacy was, and whether or not it included informational self-determination. Returning to his argument about importing foreign law into India, Mr Sengupta cited Justice Antonin Scalia of the American Supreme Court who, in a death penalty case, had resisted the use of comparative precedent, arguing that in judging whether the death penalty in a particular case was “cruel and unusual punishment”, only “American standards of decency” ought to be looked at.

In any event, Mr Sengupta continued, even the German Constitutional Court required a balancing between individual and community interests. He repeated his submission that the right to informational self-determination was fundamentally about privacy, since the right to control information about oneself was a facet of privacy. If the Court was going to go into that, then there was a compelling State interest in the present case: that of preventing duplicate PANs, and ensuring efficient collection of taxes. Justice Sikri stated that the Petitioners would have to show why they had a right to pay taxes in the manner that they desired. Mr Sengupta continued by saying that biometric collection was the most sophisticated system presently known. PAN was the technology of 1975, he concluded; but Aadhaar was the technology of 2016.

The Arguments of Mr Zoheb Hossain

Mr Zoheb Hossain observed that India is a progressive tax regime. Progressive taxation was itself a facet of Article 14 of the Constitution. 139AA served this progressive goal by eliminating the inequality between taxpayers and tax evaders, by making duplication of PANs impossible. There was no discrimination against individuals; in fact, there were other provisions of the Income Tax Act – such as dividend distribution tax – applicable only to companies.

Mr Hossain then argued that Mr Divan was incorrect to argue that compelled taking of biometric details and iris scans amounted to compelled speech. Citing United States vs O’Brien, he argued that not every act or conduct amounted to “speech”.

Mr Hossain concluded by arguing that the standard for injuncting a parliamentary legislation was extremely high. There could be no injunction unless the statute was manifestly unconstitutional. Consequently, if the Court was inclined to refer the case to the larger bench, it ought not to grant a stay on the operation of S. 139AA.

(Disclaimer: The writer assisted the Petitioners in the constitutional challenge before the Court.)

 

The Bombay High Court’s Abortion Judgment: Some Unanswered Questions

On 19th September, a division bench of the Bombay High Court handed down a judgment on the interpretation of the Medical Termination of Pregnancy Act, 1973 (India’s abortion law). The case arose out of a suo motu PIL, which itself had arisen out of concern with the deplorable condition of a female prison inmate, but was subsequently expanded to deal with the termination of pregnancy of female prison inmates in general.

After considering the implementation of the Rules in the Maharashtra Prisons Manual, the Court moved on to an examination of the Medical Termination of Pregnancy Act. The relevant section(s) of the MTP Act are:

“Sec. 3(2) Subject to the provisions of sub-section (4), a pregnancy may be terminated by a registered medical practitioner,-

(a) where the length of the pregnancy does not exceed twelve weeks if such medical practitioner is, or

(b) where the length of the pregnancy exceeds twelve weeks but does not exceed twenty weeks, if not less than two registered medical practitioners are of opinion, formed in good faith, that,-

(i) the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health ; or

(ii) there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.

Explanation 1.-Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

Explanation 2.-Where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman.

With respect to Explanation 2 being limited to contraceptive failure in case of married couples, the High Court held that “today a man and a woman who are in live-in-relationship, cannot be covered under Explanation 2 whereas Explanation 2 should be read to mean any couple living together like a married couple.” (Consider the similarities with US vs Windsor) Unfortunately, however, the High Court provided no principled justification for this expansive reading of the term “married”. Presumably, the justification lies in the requirement that statutory texts must be interpreted in light of background constitutional principles (see here for a more detailed analysis of this doctrine); which constitutional principles was the Court applying, however? The answer would have implications going beyond the specifics of this case. For instance, if the background principle was equality, and the irrationality of drawing a distinction between married and unmarried couples, then a similar argument could potentially be raised to attack the married/unmarried distinction in the marital rape exception. On the other hand, if the background principle was the right of the woman to bodily integrity and decisional autonomy (something the Court went into subsequently), then there could be no justification for limiting the Explanation to couples living together as married. Consequently, it would be vulnerable to a possible future constitutional challenge asking the Court to strike off the word “married” from the statute altogether, and extend its application to all women. Therefore, the Court’s laconic reading of “married” to include relationships in the nature of marriage, despite its undeniably important practical implications, is something of a missed opportunity.

In subsequent paragraphs, the Court then examined pregnancy, and the unequal burdens that it imposed upon women. It observed that:

“There are social, financial and other aspects immediately attached to the pregnancy of the woman and if pregnancy is unwanted, it can have serious repercussions. It undoubtedly affects her mental health… it is mandatory on the registered medical practitioner while forming opinion of necessity of termination of pregnancy to take into account whether it is injurious to her physical or mental health.”

The Court’s focus on mental health – and its observation that because of its social, financial and other aspects, unwanted pregnancies affect women’s mental health – are important, because under Section 3, the medical practitioner must make a “good faith” assessment about whether the pregnancy is harming the woman’s mental health. Taking this forward, the Court then noted that:

“A woman’s decision to terminate a pregnancy is not a frivolous one. Abortion is often the only way out of a very difficult situation for a woman. An abortion is a carefully considered decision taken by a woman who fears that the welfare of the child she already has, and of other members of the household that she is obliged to care for with limited financial and other resources, may be compromised by the birth of another child… these are decisions taken by responsible women who have few other options. They are women who would ideally have preferred to prevent an unwanted pregnancy, but were unable to do so. If a woman does not want to continue with the pregnancy, then forcing her to do so represents a violation of the woman’s bodily integrity and aggravates her mental trauma which would be deleterious to her mental health.”

And further:

“The right to control their own body and fertility and motherhood choices should be left to the women alone. Let us not lose sight of the basic right of women: the right to autonomy and to decide what to do with their own bodies, including whether or not to get pregnant and stay pregnant.”

The Court went on to affirm that the right to reproductive choice was a facet of ‘personal liberty’ under Article 21 of the Constitution. These observations, it would appear, lead to only one conclusion: if the woman’s right to bodily integrity and decisional autonomy is paramount, then, under Section 3, her decision to terminate the pregnancy must be dispositive of the question of good faith; in other words, the medical practitioner cannot, in “good faith”, contradict the woman’s informed choice to terminate her pregnancy, or substitute his judgment about what constitutes a threat to her mental health over hers. Inexplicably, however, the Court did not make this last – but crucial – interpretive step. After making its remarks about bodily integrity and decisional autonomy, the Court went back to the original question of prison inmate pregnancies, and passed directions to facilitate termination “in accordance” with the MTP Act.

Consequently, the Court’s treatment of Section 3 is – in my view – an even greater missed opportunity than it’s reading of Explanation 2 (where, at least, it returned a clear interpretive finding). Once the Court had gone as far as to say that an unwanted pregnancy, ipso facto, presented a substantial danger to a woman’s mental health because of its economic and social consequences, it required but a small, further step to hold that, in the background of Article 21, Section 3’s “good faith” requirement made the woman’s decision paramount. In the absence of a direct interpretive finding though, there is a risk that the judgment – like many other well-intentioned judicial efforts – will remain mere rhetoric.

It is also an opportunity missed from the perspective of the evolution of constitutional doctrine. What the Court was effectively doing, both in its reading of Explanation 2, and in its interpretation of Section 3, was interpreting statutory provisions in light of the Constitution, in order that they would yield a meaning that was not immediately obvious or intuitive. Reading statutes in light of the basic law is a practice that has nuanced variants in different jurisdictions. How far can a Court go? Is this mode of interpretation limited to situations where there are two equally valid interpretations of a statute, and the Court then selects the one that is more in conformity with constitutional principles (New Zealand)? Or – slightly stronger – may the Court select the meaning that is most in conformity with the Constitution, as long as it can be plausibly borne by the text (UK and the Human Rights Act)? Or can the background law become constitutive of statutory meaning (Germany)? The Bombay High Court, in this case, found itself on the strong side of the spectrum – it effectively used the background Constitutional principles to attribute meanings to “marriage” and “good faith” that could almost certainly not be supported independently (but were not entirely outside the bounds of possibility either). Indian doctrine has, at various times, adopted these differing standards, without a clear conceptual analysis about what the Constitution actually requires, by way of interpretation. The wait for that will continue.