Guest Post: (Mis)Applying Puttaswamy – The Delhi High Court on Privacy and Evidence

[This is a guest post by Karthik Rai.]


It has been argued  that the transformative character of the Puttaswamy judgement did not extend to governing claims to the fundamental right of privacy between private parties. To recapitulate, Puttaswamy adopted a narrow approach to privacy and did not examine horizontality (and rightly so, as this was not what the constitution bench was convened to answer). Thus, the court did not explicitly hold that an Art.21 protection in case of privacy violation would extend to violations by private parties or individuals.

However, this conclusion is not a unanimous or unambiguous one. Recently, in the case of Deepti Kapur v. Kunal Julka – a case where an argument based on the fundamental right to privacy was raised in a divorce-related proceeding between the plaintiff and the defendant – the Delhi High Court ruled that evidence cannot be inadmissible on grounds solely of breach of privacy under Article 21. The issue of horizontality serves merely as a prefatory remark to introducing this case; the more significant issue is the manner in which Puttaswamy was applied in this case, whether the horizontal application was valid or not. I argue in this piece that the interpretation of Puttaswamy in Kunal Julka was very restricted – and, at place, perhaps incorrect – and could precipitate an undesirable jurisprudence on the admissibility of evidence.

The Facts

The husband filed for divorce before the Family Court under S.13(1)(a) of the Hindu Marriage Act, stating that his wife had defamed him before her friend, causing him mental agony and cruelty. As proof, he submitted, in a CD, a video-recording of her conversation with her friend, collected by the CCTV camera in that room. The statute governing this issue was Section 14 of the Family Courts Act, 1984:

14. Application of Indian Evidence Act, 1872.—A Family Court may receive as evidence any report, statement, documents, information or matter that may, in its opinion, assist it to deal effectually with a dispute, whether or not the same would be otherwise relevant or admissible under the Indian Evidence Act, 1872 (1 of 1872). (emphasis mine)

The wife claimed that she had the right to the non-invasion of her ‘thoughts and behavioural patterns’ as part of her privacy rights, and that secretly-recorded conversation occurred in her bedroom, where her conversations should have been confidential. This, she argued, violated her fundamental right to privacy per the Puttaswamy holding (para 6). Since the evidence produced was in breach of this fundamental right, the recording would be inadmissible. While Section 14 permitted evidence notwithstanding its inadmissibility under the Evidence Act, it did not permit evidence that was not admissible “as per the Constitution”. (para 7).

Contrarily, the husband argued that the fundamental right to privacy was subject to restrictions – specifically, his right to fair trial under Article 21, lest he should be denied the opportunity of proving his claim. He also argued that Section 14 ensured admissibility regardless of its inadmissibility under the Evidence Act.

The High Court ruled in the husband’s favour. Its ruling on this point had two broad arguments, which are analysed below.

[A]. Relevance as the only test of Admissibility

The Court noted that the test for admissibility was ‘crisply’ detailed in Pooran Mal v. The Director of Inspection (Investigation), New Delhi, where it was held that since the Evidence Act referred to only relevance as the criterion of admissibility, the ‘spirit of our Constitution’ could not be invoked to exclude illegally-procured evidence. Then, the Court relied on State v. Navjot Sandhu which, while referencing RM Malkani v. State of Maharashtra, upheld the admissible-if-relevant test (paragraphs 17-20).

However, Justice Bhambani does not analyse the fact that Puttaswamy overrules each of these cases on these points, whether directly or indirectly. For instance, Pooran Mal relied on MP Sharma. As Vrinda Bhandari and Karan Lahiri argue, Puttaswamy, by upholding a fundamental right to privacy, overruled MP Sharma v. Satish Chandra which, while examining if procuring inculpatory documents violated Article 20(3) of the Constitution (which protected against self-incrimination), stated that, given the Constitution did not recognize a fundamental right to privacy, Article 20(3) could not be applied to such illegal procurement. Pooran Mal also relied on the siloed approach advocated by A. K. Gopalan v. State of Madras (para 23) which is now overruled. Therefore, Pooran Mal stands on very unstable grounds. The argument in Kunal Julka that post-Puttaswamy cases like Yashwant Sinha v. CBI too relied on Pooran Mal forthe admissible-if-relevant test (para 25), is consequently questionable.

Malkani considered the issue only of violation of a statutory provision (the Indian Telegraph Act), and did not address the issue of violation of a constitutional provision. Chandrachud J. stated that Malkani followed Kharak Singh’s reasoning, which stated that there was no fundamental right to privacy, and which was therefore overruled by Puttaswamy (para 51). Moreover, Malkani, too, adopted the siloed approach to fundamental rights which has been disregarded since RC Cooper and Maneka Gandhi, and thus liberty and privacy claims under Article 21 were not examined (something that Selvi v. the State of Karnataka [para 192]examined and upheld, in the context of the constitutionality of confession-obtaining methods like narco-analysis). Subsequently, Navjot Sandhu too fails as authority on this point, for its holding was premised on Malkani and Pooran Mal (paras 154-155).

Kunal Julka’s decision ties into a significant issue. Gautam Bhatia has argued that, since Selvi, which read Articles 20(3), 21 Sections 24-27 of the Evidence Act harmoniously to protect an accused’s mental privacy, a distinction has been created between illegally-procured and unconstitutionally-obtained evidence. Post Puttaswamy, this distinction was carried forth, as argued on this blog, by Vinit Kumar v. CBI and Ors. In Vinit Kumar, the Bombay High Court noted (in my opinion) rightly, that the interception orders passed under the Telegraph Act were violative of the testsofprivacyestablished in Puttaswamy, and therefore, the Court would be ‘breeding contempt’ by eschewing procedure, if such illegally procured evidence were to still be admitted in a trial (para 38). In fact, it noted all the cases mentioned afore and cited in Kunal Julka, and held that any privacy infringement by the State will have to meet the privacy tests Puttaswamy established, with any case suggesting otherwise not a ‘binding’ precedent on that point (para 12).

This well-founded distinction was not touched upon, unfortunately, in Kunal Julka. It only examined the Evidence Act and the Family Courts act, stating that the special law has to prevail over the general law (para 15). With the Constitution having a bearing on the admissibility of evidence, and not merely the Evidence Act, the question of ‘generalia specialibus non derogant’ rule should have never arisen.

Kunal Julka also stated that evidence adduced under Section 14 were to be excluded on privacy grounds, Section 14 would become ‘nugatory’ (para 35). However, that is a fallacious argument, and is not a legitimate justification for the admissibility of evidence under its scope. Besides, evidence collected illegally, but satisfying the Puttaswamy tests, could still be admitted under Section 14, and therefore, Section 14 would not necessarily be nugatory.

[B] Privacy subject to Fair Trial

Ruling on the husband’s claim for a fair trial right under Article 21, the Court simply stated that, since the fundamental right to privacy is not absolute, privacy considerations ‘may have to yield’ to the fundamental right to fair trial under Article 21 (para 24). It stated that, after the evidence had been made admissible, the weight (if any) to be given to evidence must be decided based on (undefined) ‘considerations of justice and fair play’ (para 36).

It is surprising how the Court, in its enthusiasm to admit the evidence, does not follow its own statement that no fundamental right is absolute. Since the right to fair trial, therefore, is also not absolute, the Court should have applied the tests of privacy established under Puttaswamy to ascertain if the privacy-violation precipitated by the evidence met the tests of legality and proportionality, instead of making a nonchalant remark that it may yield to fair trial rights. Only then should the evidence have been even made admissible. In fact, the court cited the Sahara v. SEBI case to justify the importance of fair trial against other fundamental rights, but that case tried to balance the two rights based on pre-established tests, observing that (para 25):

…even Articles 14 and 21 are subject to the test of reasonableness after the judgement of this Court in Maneka Gandhi…(para 25)”

Conclusion

Theinterpretation in Kunal Julka is, in my opinion, an archetypal adherence to the crime-control model as against the due-process model that Mrinal Satish and Aparna Chandra prove still pervades jurisprudence in cases of admissibility of evidence and criminal-law jurisprudence in general. In one part of the judgement, it even holds that, howsoever the evidence is collected, fair-trial and justice mandate its admissibility (para 35). Claims that a right to fair trial had to be preferred denying it impacted the public as against a personal impact if privacy was violated (para 23), further substantiate this point. If such substantive-truth seeking jurisprudence re-develops in future cases notwithstanding Puttaswamy, without even applying its tests, it may serve as the death knell for privacy and procedural truth, especially with modern technologies like Fitbits, etc., being used in trials as evidence. In any case, the argument this piece makes, is that the reasoning in Kunal Julka is extremely tenuous, dealing a heavy blow to the transformative character of Puttaswamy. The judgement exemplifies the truism, that whether a judgement is interpreted conservatively or expansively, could determine the outcome of a range of cases not specifically anticipated by it.

The Supreme Court’s Judgment on the Maintainability of the Rafale Review: Some Salient Features

In a judgment handed down today, the Supreme Court rejected the Government’s objections against the maintainability of the review petitions in the Rafale Case. More specifically, during the hearing, the Attorney-General had objected to the production of three newspaper articles published in The Hindu. The AG had argued that as these documents had been unauthorisedly obtained from the Defence Ministry, and as they pertained to issues concerning national security, they should not be admitted as evidence. It was this contention that the Court rejected today, paving the way for a full merits hearing of the review petition.

The concurring opinions of the Chief Justice and of Joseph J., for the most part, articulate settled legal principles. Both judgments hold that the manner in which a document has been obtained does not ordinarily affect the question of its admissibility in court. Under the Indian Evidence Act, the standard is that of relevance: as long as a piece of evidence is relevant, even if it has been illegally obtained, that will not prevent a court from admitting and considering it. Both judgments then also note (although for different reasons) that the AG’s reliance on Section 123 of the Evidence Act – which prohibits evidence from being taken on “unpublished official records relating to any affairs of State” – is misplaced and incorrect, as is his reliance on the Official Secrets Act. With the AG’s affirmative defences having failed, and on the relevance standard of the admissibility of evidence, both judgments then conclude that the review petition is maintainable.

The Opinion of the Chief Justice 

So far, so good. Both judgments, however, have other interesting aspects that merit some study. The Chief Justice, for example, embarks on a brief consideration of the law relating to the freedom of the press, and while analysing The Pentagon Papers case from the United States, has this to say:

By a majority of 6:3 the U.S.  Supreme Court declined to pass prohibitory orders on publication of the “Pentagon Papers” on the ground that the Congress itself not having vested any such power in the executive, which it could have so done, the courts cannot carve out such a jurisdiction as the same may amount to unauthorized judicial law making thereby violating the sacred doctrine of separation of powers.  We do not see how and why the above principle of law will not apply to the facts of the present case.  There is no provision in the Official Secrets Act and no such provision in any other statute has been brought to our notice by which Parliament has vested any power in the executive arm of the government either to restrain publication of documents marked as secret or from placing such documents before a Court of Law which may have been called upon to adjudicate a legal issue concerning the parties. (paragraph 6)

I want to focus on the underlined lines, because they express a position of law that the Supreme Court has emphatically not been adhering to in recent times. In PILs to ban books and censor films – filed both before the High Courts and the Supreme Court – where the statutory framework for regulation is very clear, it is the Supreme Court that has “carved out … a jurisdiction” for itself, where it considers such pleas for bans, and returns findings on merits. The apotheosis of this was ex-CJI Dipak Misra’s judgment in Meesha (discussed here), which shredded the scheme of the CrPC by granting direct jurisdiction to ban books to the higher judiciary, as opposed to its more limited actual remit, which was to judicially review executive-ordered book bans. Paragraph 6 of the Chief Justice’s opinion in today’s judgment is a salutary reminder that separation of powers concerns preclude the Supreme Court and the High Courts from entertaining PILs asking for book bans or film bans, and hopefully, it is a reminder that will be heeded in the future.

The second interesting aspect of the Chief Justice’s judgment speaks to an argument that was vehemently advanced by the AG during the hearing. When confronted with the incontestable legal proposition that the source or manner in which a document has been obtained has no bearing on its admissibility as evidence, the AG then turned tack and argued for carving out an exception to that rule for cases involving national security. In other words, he asked for a blanket exemption, from judicial review, of any material that (in the opinion of the State) had implications for national security. As many people noted at the time, this is a profoundly dangerous argument that would, among other things, end up gutting the Right to Information Act. From that perspective, the Chief Justice’s emphatic rejection of the argument (paragraph 11) can allow all of us to breathe a sigh of relief. Even under existing legal doctrine, the judiciary invariably accords to the State a very high level of deference on issues of national security; a blanket exemption from consideration altogether would, however, go against entire idea of constitutional supremacy in a democratic republic.

The Opinion of Joseph J.

Justice Joseph’s opinion, as well, has some thought-provoking arguments. While the Chief Justice dismisses the AG’s arguments on privileged documents on the ground that they were no longer “unpublished”, and the RTI/Official Secrets Argument on the ground that these were simply inapplicable to the case, Justice Joseph embarks upon a more elaborate examination of both. In particular, following the Chief Justice’s analysis on the issue of blanket exemptions to admissibility, Justice Joseph holds that Section 123 of the Evidence Act is now subject to the RTI (paragraph 24) more importantly, he holds that with the onset of the RTI regime, the State can no longer claim privilege for an “entire class of documents” (by, for example, invoking “national security), and immunise them from public scrutiny. (paragraph 20) Rather, the RTI regime now requires any such claim by the State to be assessed on a case-to-case basis, with considerations of public interest central to the enquiry. This, again, is important in a world where the State regularly invokes “national security” as a shibboleth to prevent any further discussion.

It is on the question of relevance and illegally obtained evidence, however, that I have my only point of criticism to make. Towards the end of his judgment, Joseph J. observes that:

I would observe that in regard to documents which are improperly obtained and which are subject to a claim for privilege, undoubtedly the ordinary rule of relevancy alone may not suffice as larger public interest may warrant in a given case refusing to legitimise what is forbidden on grounds of overriding public interest. (paragraph 31).

He then goes on to hold, however, that since the present case pertain to allegations of corruption in high places, the public interest justifies admitting the documents. This, in my view, is a completely unnecessary muddying of the waters. The Chief Justice’s opinion is crystal clear on how courts should not be creating new sets of jurisdictions that limit or censor expression. The rule of relevance is a straightforward one, and it is difficult to see why a further “public interest” requirement needs to be introduced here.

Conclusion

The Supreme Court’s judgment(s) today provide a welcome restatement of long-settled legal principles. They further affirm the regime of transparency that already existed under common law, an was then significantly strengthened by the RTI – as opposed to the regime of secrecy represented by the Official Secrets Act and shibboleths of “national security.”

That said, however, to me, it remains a matter of some concern that these arguments were made in the first place, and needed two detailed judgments to rebut. Like the broader public discourse, judicial discourse also has an Overton window; and it is difficult to see the AG’s arguments as anything other than an attempt to shift that window, and to make a set of fringe – almost laughably off-piste – arguments respectable. It may perhaps, therefore, have been even better if the Supreme Court had rejected them out of hand, rather then giving them a veneer of respectability by hearing them out, reserving orders, and then delivering a judgment on merits.

Once that was done, however, there is little doubt that today’s judgment(s) unambiguously reject the State’s attempts to overturn the gains of the RTI and re-establish colonial-style secrecy; and for that, they ought to be welcomed.

 

Guest Post: Hacking the Supreme Court in the Age of AI

(This is a guest post by Anand Venkatanarayanan).

Introduction

How do you bring down a democracy? In their seminal paper, Bruce Schneier and Henry Farrell argue that democracy is a political information system, which has the following characteristics.

  • Common knowledge – the consensus beliefs that hold systems together.
  • Contested knowledge – the knowledge that is contestable, where people may disagree.

They argue quite convincingly through the example of Russian election meddling in the US elections, that democratic systems have an inherent vulnerability that can be exploited to bring it down: this vulnerability comes into play when common knowledge becomes contested knowledge. For example, the disinformation campaign launched by the Russians included undermining knowledge assumptions about how voting works, spreading distrust about the candidates and also the political system in general, through a variety of other means.

This post builds on the above paper and further argues that dispensation of justice is also an information system in a democracy, and has the same characteristics. For instance, “settled law” can be viewed as common knowledge, while different interpretations of law by different benches of the Supreme Court of India (due to its polyvocal nature) can be regarded as contested knowledge.

When viewed through this lens, one way in which the Supreme Court could be brought down is by turning common knowledge into contested knowledge. For instance, a party that has lost a case in the court can ascribe extraneous motives to the judge who gave the judgement, and attempt to turn common knowledge (Court orders are binding) into contested knowledge (they are not binding and can be flouted because they are based on extra-legal factors).

While Courts have evolved contempt jurisdiction to handle external attempts to change common knowledge into contested knowledge, this post argues that the Supreme Court has become institutionally blind to how i’s recent judgements, in attempting to deliver substantive justice by disregarding procedure, are turning common knowledge (settled law) into contested knowledge, and thereby undermining public trust on it.

Procedure, Proof and Innovation

It is often said by Karl Popper that Science never proves, but only disproves. At the heart of his assertions is the simple observation that “criterion of the scientific status of a theory is its falsifiability, or refutability, or testability”. The difference between science and pseudo-science is that pseudo-science does not offer any testable experiments (natural or otherwise) that can disprove the hypothesis.

Testability by others, and not just by the claimants, hence is at the heart of scientific inquiry. For instance, while someone can make a claim that peacocks reproduce by crying, by virtue of their position and title (as a judge), it is deemed to be absurd because contrary evidence has been recorded by eyewitnesses and others for a very long time.

How does testability itself works in the scientific world? It is defined as a process that must be followed to ascertain the validity of the claims. This includes formal proofs, experimental observations, peer review through publishing in journals, feedback, revision and finally acceptance or rejection.

Thus process, procedure and innovation are deeply interconnected in furthering scientific knowledge. There are well known cases such as fraudulent stem cell research where all of this failed, but that was not because of lack of application of the due process – it was in spite of it. Thus, failures in applying due process are very rare and practically non-existent – and the necessity of due process itself gets strengthened through exceptions such as the fraudulent stem cell research case.

Scientific due process is hence an information system, which everyone agrees is essential (Common knowledge) to mediate substantive disputes (contested knowledge). Hence innovation (change) in due process, while permissible and welcome, is not arbitrary and accepted only when it aids on mediating disputes and in furthering scientific knowledge.

Evidence Act and other norms

In the legal system, the Evidence Act of 1872 can be viewed as the equivalent of scientific due process, since it provides a legally sanctioned framework, which covers in detail how to establish facts within the context of a legal dispute, and also issues of proof generation, and scrutinizing those proofs via cross-examination.

The Indian Evidence Act embodies the adversarial system of justice, where parties represent their case before judges, who attempt to determine the truth and pass judgment accordingly. In this system, the Courts are expected to follow due process (as set out in laws such as the Evidence Act) and other norms to decide the ratio decidendi of a particular case. This, in turn, implies that (subject to their own interpretation, of course) the rules set out under the Evidence Act and other norms can be thought of as “Common Knowledge”, which used to mediate substantive disputes (Contested knowledge). Innovation in common knowledge (i.e., modifying or bypassing due process) must be accepted only when it aids in delivering justice.

However, if common knowledge (due process and norms) can be converted into contested knowledge (due process and norms are not important and hence can be discretionary), it introduces an “attack surface” on the justice system itself, which is not patchable (in software terms, not patchable means that it can’t be fixed). What would be the implication if this attack succeeds?

The Salem witch trials offers us an example of this played out in medieval times: in these trials, “tribunals” admitted spectral evidence based on dreams and visions. Leaving aside the problematic outcomes of the witch trials, they resulted in results void of any reason and reflected the bias and prejudices of the population as well as the judge.

Modern-day effects are very similar, and a critical analysis of CJI Dipak Misra’s judgements pointed out how outcomes void of reason have become the norm. Sealed covers and power point “evidence” are the modern day variants of medieval spectral evidence. And whether it the non-existent CAG report in the Rafale judgement or the dodging of facts and inverting reality and claiming that something that was argued in open Court was never actually argued in the Aadhaar judgment, jettisoning reason has serious consequences and makes judgements unintelligible.

If reason and norms are abandoned, what replaces them? Both the Rafale judgement and the Aadhaar judgement show that it is replaced by excessive faith in the government of the day, and statements by government functionaries have higher evidentiary value, even when they are unsigned, not placed on affidavit and demonstrably false, when put under scrutiny.

Attack surfaces on the Supreme Court

The structural faults elaborated above exposes the Supreme Court to new attack vectors, which can be pulled off by actors in the age of Big data and Artificial intelligence (AI). State governments are turning towards AI systems for crime detection and even the court seems to believe that it can be used for medical education reform. Note that faith in technological regimes is not new, but even the creators of AI are not sure what they have built and how they work – in contrast to their employers, who believe that we can have, not just accurate AI but trusted AI as well. But if they manage to convince the executive and the government of the day to publicly pronounce their faith in new technological regimes, success is guaranteed against any litigation, since the court places excessive faith in the statements of the government and it’s functionaries. For example, as the creator of Aadhaar had so convincingly demonstrated, all that was required was to convince three judges that mattered, and Court’s belief in the government’s statements overrode reason, logic and other norms, including open contempt towards it’s interim orders.

This post predicts that this “trust us at the cost of established due process norms to establish contested knowledge” would be the new normal in how technology projects would be rolled out in the future, and litigation by citizens against those projects will always fail, unless the court reverses course.

Conclusion

This post made three claims based on the paper by Bruce Schneier and Henry Farrell

  1. Justice is an information system in a democracy and hence has the same vulnerabilities: common knowledge attacks are deadly to its legitimacy.
  2. The Supreme Court of India, in its quest to deliver substantive justice, has often ignored laws and norms which constitute common knowledge, and has hence unknowingly participated in an insider attack (in information security parlance) that has the potential to erode the court’s legitimacy in the public eye.
  3. The vulnerability caused by this blindness will be ruthlessly exploited by marketers of technology projects which will use Big data and AI.

It is entirely possible for others to disagree with the above claims, but the claims are at least testable in the Popperian sense; and thinking about justice as an information system that has unique vulnerabilities might bring to the fore new perspectives about its relationship to security.

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

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

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

Data leaks

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

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

Data minimization

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

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

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

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

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

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

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

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

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

Data classification

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

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

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

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

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

Encryption

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

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

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

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

Hacking and Hope

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

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

 

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

Conclusion

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

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

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

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

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

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

The Aadhaar Judgment and Reality – II: On Fallibility

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

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

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

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

Biometric Fallibility

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

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

They were not included in the further authentication tests.

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

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

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

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

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

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

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

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

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

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

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

Witch Doctors and Bleeding

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Conclusion

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

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

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

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

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

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

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

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

The 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 First and Final Tribunal: The Judge Loya Case and the Blurring of Judicial Functions

Judge Loya passed away on December 1, 2014, while presiding over the politically-charged Sohrabuddin Sheikh encounter case, ostensibly because of a heart attack. In November 2017, The Caravan magazine published two articles raising doubts about whether Judge Loya had died of natural causes. There was considerable furore, and after a series of events, which are not relevant for the purposes of this post, various petitions were filed before the Bombay High Court and the Supreme Court, asking that the death be investigated. A bench presided over by the Chief Justice of India pulled up all the petitions to itself, and delivered its judgment last Thursday, dismissing the petitions, rejecting the request for an enquiry, and holding that “in so far as the circumstances relating to the death of Judge Loya are concerned, all issues raised in that connection in the present case shall stand governed by the judgment delivered by this Court.”

The tangled history of the Sohrabuddin trial (including how the Supreme Court dealt with some problematic aspects of it in its judgment), the Court’s decision to transfer a pending petition of the Bombay High Court to itself, the unavoidable political backdrop of this case, and the circumstances surrounding Judge Loya’s death itself, are all issues that have been debated elsewhere, and will continue to be debated. I do not intend to address any of them here. Nor do I intend to critique the substance of the Supreme Court’s judgment from a criminal law perspective – that too has been done elsewhere. I will also not critique the Court’s withering attack on the motivations of the PIL-petitioners, and on politically-motivated PILs in general – an attack that is justified in principle, but one that seems particularly jarring in view of the many absurd and politically-motivated PILs the Court indulges on a regular basis, including but not limited to the PIL for making the national anthem compulsory in cinema halls (which the Court entertained through multiple hearings for over a year). However, what I do want to address is the Supreme Court’s approach to this case, and the larger ramifications for its role as a constitutional court.

The relevant prayer before the Court was that an enquiry be ordered into the death of a judicial officer, that was, until now, believed to be natural. The petitioners argued that certain facts had come to light that raised a non-trivial possibility that the death was not of natural causes – and that this warranted an investigation. In response, the State of Maharashtra – which had conducted what it called a “discreet enquiry” after The Caravan articles came out – argued that there was nothing to suggest that the death was unnatural, and that whatever doubts had been raised by The Caravan’s stories were susceptible of an entirely innocent explanation. The State of Maharashtra also obtained the “say” of four judicial officers who were with Judge Loya during his last hours and after his death, and who affirmed that there were no suspicious circumstances surrounding the death.

The evidence before the Supreme Court was entirely documentary in nature. On one side there were documents (articles, medical reports, etc.) highlighting a set of facts that cast doubt upon the nature of Judge Loya’s death; and on the other side, there were other documents (the “discreet enquiry” report, contrary medical reports etc.) that sought to rebut or explain away these doubts. Now, the Supreme Court might have done the following: it could have taken a prima facie view of the petitioners’ case, and found that the petitioners had failed to make out a threshold case for an investigation, and dismissed the Petitions. This approach would have involved the Court expressing no opinion on the cause of Judge Loya’s death, but simply noting that the evidence on record was insufficient for it to draw any conclusions.

However, this is not what the Court did. Acting in its capacity as a constitutional court, and as the Supreme Court, it went far deeper, and into the quality of evidence before it, presented by both sides. It delivered a 114-page long judgment that went into great factual detail, drew almost-definitive conclusions about what had happened, effectively closed the case for all time, and did it all on the basis of its interpretation of the documents before it, untethered from the existing rules of evidence. The judgment, therefore, reads less like a verdict on a plea for an investigation, and more like a criminal appeal that results in an acquittal, but without the benefit of a trial court judgment where the first trier of fact has returned detailed findings about the evidence, which the appellate court is then reviewing. Alternatively, it reads like a trial court judgment that has been delivered without a trial. This, I submit, is a very uncomfortable halfway-house for the Court to find itself in: it seems to be performing both the functions of a trial court, but without the statutory framework that is meant to govern the trial court in determining the truth, and of a constitutional court, but ruling on issues that a constitutional court is neither equipped nor meant to rule on.

Indeed, the Court was hardly unaware of this. In paragraph 7, Justice Chandrachud noted that:

“In view of the nature of the issue which has been raised in the proceedings, we have permitted learned counsel appearing on behalf of the petitioners as well as the intervenors to rely upon such documentary material as would enable them to advance their submissions without being bound by technicalities of procedure.”

However, the fact that the Court was excusing the petitioners and the interveners to advance documentary material “without being bound by technicalities of procedure” does not mean that the Court was absolved from ensuring that its findings were delivered within the framework of a procedure that is relevant to the nature of those findings. The most significant example of this occurred in the Court’s treatment of the “Discreet enquiry”, conducted by the State of Maharashtra, which recorded the “say” of the four judicial officers. The judicial officers broadly supported the State’s view that there was no reason to believe that Judge Loya’s death was unnatural. The question before the Court, then, was what evidentiary weight (if any) to accord to this.

To contrast what the Court did (which I discuss below), let’s imagine what would have happened had this been a normal criminal case pertaining to the death of Jude Loya.The Investigating Officer might have taken the statements of the four judicial officers as part of her initial investigation, and submitted them to the Magistrate along with the rest of the material. In the unlikely event that the Magistrate would have decided not to take cognisance of the case on the basis of these statements, and closed proceedings, it would still have been open to the kin of the accused to launch a private prosecution (they would also have had remedies if the police itself had sought a closure). This opportunity, however, has now been denied to them by the Supreme Court which stated that all issues are now closed. However, it is unlikely that the Magistrate would have closed the case, because the threshold for taking cognisance is a low one, and exculpatory evidence is normally left to be brought in at the stage of trial. This leads to the second situation: if, on the basis of the prima facie material produced by the Prosecution, a charge had been framed, then the four judicial officers would have been witnesses for the defence, and their evidence would have come in at the stage of trial (after the Prosecution had completed its evidence). There would have been no “discreet enquiry” and no “say”: rather, the four judicial officers would have been sworn in, their evidence taken, and then they would have been cross-examined by the Prosecution.

These are not simply “technicalities of procedure.” They go to the heart of the adverserial legal system: being sworn in is important, because it exposes a witness to a charge of perjury if she is later found to have lied. And cross-examination is absolutely critical, because it is a fundamental postulate of the adverserial system that the truth – or an approximation of it – cannot be arrived at in the absence of each party’s case being tested by its opponent. For this reason, courts across the common law world have held that even the word “evidence” has little meaning until it is put through the rigours of a cross-examination.

It is important to note that even though it is a constitutional court, where disputed factual questions are ordinarily not meant to be contested, the Supreme Court is vested with the power of conducting a cross-examination if, in its discretion, it believes that it is appropriate. And indeed, precisely this request was made by the counsel for the Petitioners, who asked that he be allowed to cross-examine the four judicial officers (paragraph 15). The Court record this submission, and then rejected it, noting that:

None of the persons whose cross-examination has been sought is a witness in the present proceedings. The court is essentially required to consider to whether a case has been made out on behalf of the petitioners (supported by the intervenors) for directing an inquiry into the circumstances leading to the death of Judge Loya. As part of this process, the court has to decide as to whether the inquiry which has been conducted by the state is vitiated and if circumstances have been brought to the notice of the court which cast a reasonable suspicion about the events leading upto the death of Judge Loya. (paragraph 63)

This, however, is circular: the whole point of the Petitioners was that the question of whether the “inquiry” was vitiated or not could not be decided without actually submitting the “evidence” of the judicial officers who participated in it to the rigours of cross-examination. Instead, what the Court did hold on the question of the “discreet inquiry” and the “say”, was the following:

Each of the judges has spoken in detail of the facts and events which were within their personal knowledge. The statements contain matters of detail which would be known to those who were present with Judge Loya. They have a ring of truth. They had nothing to conceal nor an axe to grind. Three of the statements are dated 24 November 2017 while the fourth submitted by Judge Rathi is dated 23 November 2017 and contains an endorsement of receipt by the Commissioner on 24 November 2017. The fact that two of the judges were respectively at Pune and Baramati is absolutely no ground to cast doubt. The statements were submitted with dispatch. Reading them it is clear that they have been submitted without pre-meditation. The four judicial officers acted responsibly. There was no reason for them either to hasten or to cause a delay in submitting their versions of what they knew. Each of the four judges has acted with a sense of duty. This is how they would be expected to conduct themselves, in answering to a call of duty. (Paragraph 46)

The whole point, however, is that the adverserial legal system is founded on the postulate that whether a statement has “a ring of truth” is to be determined by putting its maker on oath and subjecting her to cross-examination. People often have things to conceal, and people are often motivated by greed, or fear, or a combination of both. Judges are not somehow exempted from being human in this regard  (recall how it was noted, in the Constituent Assembly, that “judges have not got two horns; they are men like us”). The issue, of course, is not whether the judicial officers in this case had anything to conceal, but that nobody can come to a definitive conclusion about that without going through the processes that the legal system expressly envisages for exactly this purpose. Consequently, the Court could have done one of two things: disregarded the statements altogether while considering the question of whether there was an prima facie evidence to warrant an investigation – or, if it was not going to do so, then required them to be sworn in and allow a cross-examination. Instead, the Court passed a sweeping conclusion on the veracity of their statements purely by virtue of their position.

In fact, the judgment, on this point, is particularly unsustainable, because it takes judges and invests them with superhuman qualities by virtue of their office, in a context in which that office has no relevance to the issues at stake. This is not a case where, for example, a judgment is being attacked on the basis that its author was motivated by financial considerations, and where it makes sense to say that our constitutional system requires us to presume judicial good faith (in the absence of clear, contrary evidence). Rather, this was a case where judicial officers effectively happened to be giving statements as “witnesses”, in the common sense of the word.

Instances abound in the judgment where the Court went into detailed factual appreciation of conflicting evidence, and came to definitive conclusions without making use of the criminal legal system’s tools to address and resolve such conflicts. For the purposes of this post, one more example will suffice: Judge Loya’s father and sister alleged that the then-Chief Justice of the Bombay High Court, Mohit Shah, had offered him a substantial bribe to return a favourable verdict. The Court rejected this by noting, inter alia, that it was “hearsay” (paragraph 60). But this is a classic example of having your Evidence Act and eating it too: the exclusion of hearsay evidence is a technical rule of evidence (subject to a series of exceptions that may even have applied in this case). The Court cannot take a janus-faced approach to the Evidence Act – discarding it in order to accord the highest probative value to a judicial officer’s “say” in a “discreet inquiry”, but following it by the book to discard statements made by the relatives of the deceased. What this results in, at the end of the day, is three judges’ assessment of a set of documents, untethered and unbound by any rules that determine, or even guide, how that assessment ought to be made: the very antithesis of having a rule of law instead of a rule of men.

The broader point is this: for the last three decades, and predominantly in the Supreme Court, the rules and procedures that govern the appreciation of evidence have come to be viewed with skepticism, as though they are impediments to arriving at the truth, rather than facilitators of it. The primary driver of this approach has been public interest litigation, where the Court has increasingly relied upon affidavits to draw sweeping factual conclusions, brushing aside evidentiary concerns by noting that these proceedings are not really adverserial. What this has resulted in, in the year 2018, is a Supreme Court of Everything: of the Constitution, of legal issues, of factual disputes, of mixed questions of law and fact. It has become the Supreme Magistrate, the Supreme Investigating Officer, and the Supreme Additional Sessions Judge, the Court of First and Last Instance. In such a situation, there is an urgent need that the Court be even more careful of the evidentiary and procedural standards it applies, because when the same body acts as the first and the last tribunal, every error is compounded to a grievous degree. The Loya Judgment was an opportunity for the Court to begin its journey down that road. Unfortunately, it now remains a road not taken.