Aadhaar intact

It’s an oft-repeated legal adage that tough cases make bad law. And, by any yardstick, the Aadhaar case that came before a five-judge Bench of the Supreme Court was incredibly complex and the full meaning of the judgment is still being deciphered by lawyers and constitutional experts. Even before the judgment had been delivered the general wisdom on the street was that the Aadhaar project was too big to fail. In the end, rightly or wrongly, that’s how it turned out. “The remedy is to plug the loopholes rather than axe the Act,” commented the majority judgment. The judges kept the core of the Aadhaar Act intact but struck down certain parts which had obviously contravened its original purpose. Thus, banks and telephone service providers, for instance, cannot use Aadhaar to establish a person’s identity. Other parts of the legislation relating to data storage have also been amended by the court so that they do not infringe on a citizen’s privacy. However, the court commented: “The principle of data minimisation is largely followed.” Crucially, the majority ruling noted that the invasion of privacy was minimal and balanced against a greater public interest. The court pointed out that 99.76 per cent of the country has been enrolled in the scheme, and if it was abandoned now, it would “amount to throwing the baby out with the bathwater.” However, the judgment does not specify what will happen to data already with banks and corporate entities.

It must be said that the government came close to being tripped up by its insistence on ramming the Aadhaar Act through Parliament in 2016 by deeming it a Money Bill that didn’t need to be sent to the Rajya Sabha. At that time, the government was worried that a combined opposition might join hands in the Rajya Sabha to embarrass it or even block the Bill from going through. The question thus arose before the court: Was this a Money Bill and, secondly, could the Lok Sabha Speaker’s ruling that it was a Money Bill be challenged in the courts? The majority ruling had a tough time defending the government’s decision to declare the Aadhaar Act a Money Bill and Justice Chandrachud came down strongly against it. On the Speaker’s power he says: “The contention that the decision of the Speaker is immune from judicial review and cannot be questioned is contrary to the entire scheme of the Constitution.”

Is the legal challenge to Aadhaar over once and for all? Unfortunately, that’s not entirely certain. The NGOs and civil rights groups that have been campaigning against it have taken heart from Chandrachud’s ruling and will use his arguments to mount a second challenge at some point in the future. Simultaneously, banks and service providers are hoping the government will pass new laws that will enable them to use the Aadhaar for certain transactions. But that could trigger fresh legal challenges and more long-running court battles.

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