Supreme Court as Custodian of the Constitution

Part - I

Where it Scores and Where it Fails

[Part II]

Aadhar Verdicts: A Clash of Two Viewpoints

The landmark Privacy judgement of 2017 had as its origin the Aadhaar controversy and the Supreme Court would, many expected, follow it up with abolition of this instrument of the authoritarian, intrusive state. That hope was dashed against the wall on 26 September this year. The majority judgement failed the nation on this score, even as the brilliant minority judgement of Dr. Chandrachud held out a sparkling mirror to the Supreme Court, showing where and how badly it went wrong. So we have before us two sharply contradictory judgements which clash not only on legal interpretations -- which is not unusual – but also on questions of fact, and that is definitely awkward if not scandalous. Below we examine the major points of conflict in the two verdicts – one trying to defend the indefensible, the other subjecting the entire Aadhaar scheme to rigorous constitutional scrutiny and declaring it unconstitutional.

Welfare Measure or Tool for Exclusion?

The petitioners against Aadhaar submitted before the Court highly credible evidence showing the worrisome extent of deprivations, e.g., a whopping 27 percent of people enrolled in Aadhaar having been denied their entitlements. They showed that UIDAI’s own claim of 99.76 percent accuracy meant a 0.24 percent failure, which translated into some 27.60 lakh persons wrongfully deprived of benefits.

In utter disregard of tons of incriminatory evidence, the majority led by Chief Justice Dipak Misra naively declared, in an unfortunate relapse into the Court’s brazenly majoritarian stance of 20131, “when it [the Aadhaar-based Biometric Authentication (ABBA) process] 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.”

It’s shocking: “unproven plea”! “exclusion of some”! Did not the little school girl Santoshi die crying out for rice in a cruel mockery of the “Beti Bachao, Beti Padao” rhetoric in BJP-ruled Jharkhand? And who does not know that authentication has often failed due to network problems, as well as changes in biometric indicators such as fingerprints or irises caused by manual labour, old age, or injuries? And that crores of people have not been able to enrol in Aadhaar due to biometric errors, and are thus subjected to a slow, cruel, civil death?

Unmoved by such pathetic situation on the ground -- such scandalous denial of the fundamental right to a life with dignity -- the majority relied mainly on a PowerPoint presentation given by the UIDAI Chairperson in the Court. One cannot help but wonder whether the learned judges of Digital India were so enamoured with the PPT format that they even overlooked the crucial fact that, unlike the submissions by the petitioners, it was not on affidavit and therefore had no legal sanctity as evidence? Or maybe they were simply looking for something special, something smart and trendy, to make their – we are sorry to say – rather frivolous argument look somewhat convincing?

The minority verdict, however, shreds the defendants’ arguments to pieces. It accepts what is well-known and conclusively reestablished by the petitioners: that the risk of exclusion is embedded into the very design of the ABBA ecosystem and also the Aadhar Act. He cites the Economic Survey of 2016-17, survey reports by eminent activist-scholars such as Jean Dreze and Reetika Khera, official reports on pilot projects in Andhra Pradesh and so on, all of which show that the exclusion percentages have been quite substantial. The Court cannot allow this, he asserts: “No failure rate in the provision of social welfare benefits can be regarded as acceptable. Basic entitlements in matters such as foodgrain, can brook no error. To deny food is to lead a family to destitution, malnutrition and even death.” The minority verdict, therefore, rules that before making ABBA 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.

Technology, Power and the Marginalised

Technology is power, there can be no two opinions on that, but who wields it against whom? For the majority on the bench, this question does not exist. For the lone dissenter, it is an issue of great import. So he takes it up at the very outset: “our decision must address the dialogue between technology and power” and shows how the biometric data sets can lead to “perpetuating of pre-existing inequalities”. He gets back to the issue towards the end of his judgement and iterates the plain fact which the majority doggedly refuses to see: “exclusion as a consequence of biometric devices has a disproportionate impact on the lives of the marginalized and poor.” In support of his contention Chandrachud cites the work of Virginia Eubanks, an Associate Professor of Political Science at the University of Albany, SUNY. Her recent work Automating Inequality: How High-Tech Tools Profile, Police, and Punish the Poor has sought to demonstrate that, as Chandrachud puts it, “automated decision-making technology does not act as a facilitator for welfare schemes for the poor and only acts as a gatekeeper …”

And therefore, he holds, “the right of the marginalised to benefits cannot be made to depend on authentication of Aadhaar.” The other judges on the bench, by contrast, refuse to recognise food and work as entitlements and validates the use of Aadhar as a tool of exclusion of the poorest Indians from schemes including PDS and MNREGA.

Data Security and Privacy Concerns

It is common knowledge that instances of data breach, including willful as well as unintended leakages and hacking into the Aadhaar database have been galore. It would not be out of place here to briefly recall just a few: the data breach episode involving US-based social networking giant Facebook and British data analytics firm Cambridge Analytica; multiple instances of Aadhaar data leaking online through government websites (e.g., when an RTI query pushed UIDAI to reveal that about 210 government websites leaked out the Aadhaar details of users on the internet; three Gujarat-based websites disclosing Aadhaar numbers of the beneficiaries on their websites; a website run by Jharkhand Directorate of Social Security leaking Aadhaar details of about 1.6 million people due to a technical glitch; and so on); the Tribune expose of a racket “selling” Aadhar details of any user, whose Aadhar number is known, to anyone who is ready to pay a few hundred rupees; the fact that the UIDAI has had to shut down ‘fraudulent websites’ and mobile apps that claim to provide Aadhaar services and to blacklist about 1,000 operators and to file FIRs against at least 20 individuals for malpractices ... there is no end to the list.   

Also there are concerns about national sovereignty, raised by the fact that UIDAI has signed contracts with L-1 Identity systems, a company known to be close to the CIA. This allows L-1 to have access to our biometric data, since L-1 systems owns the source code for the biometric database. And that’s not all. WikiLeaks have tweeted claiming that CIA might have access to the database as well. The series of tweets claimed that CIA was using Cross Match Technologies to access Aadhaar database.   

All these, a study by market research enterprise Velocity MR suggests, have aggravated the perennial concern of Indian netizens that they are likely being watched over and that their personal information is being misused. The majority verdict seeks to address this concern by striking/reading down certain sections of the Aadhaar Act (notably Section 57, which allowed private companies, including banks and telecom service providers, to demand Aadhaar numbers) as unconstitutional. This is certainly a welcome step. But the majority judgement remains conveniently silent about the huge data stock in the hands of private players like Jio, which can continue to be utilised for profiteering by private companies. Neither does the judgement provide for people to opt-out of a scheme, where data was collected without proper prior and informed consent. The minority verdict by contrast goes the crucial extra mile and orders that all such data in private hands must be destroyed at the earliest (it is another matter that state authorities and the corporate honchos can hardly be expected to act upon a minority verdict that is not binding).

Defiance of the SC and the Fraud on Constitution

Highly disappointing as the majority judgement is, it is not inconsistent with the Court’s sluggish handling of the case over the years. It passed so many interim orders directing the Union Government to refrain from making Aadhar mandatory for availing all sorts of benefits. The latter brazenly disregarded all those, and the court just looked on, allowing the project spread its venomous tentacles over all spheres of our private and public life, until it became, like the zombie banks of America in 2008, ‘too big to fail’ . The court then bailed it out from the crisis of legitimacy it was suffering from, with some minor cuts and modifications, even arguing that Aadhaar is unique and therefore better than the best! (Like, one is tempted to ask, the other ‘unique’ achievement of Digital India – the devastating 86% currency demonetisation?).

The minority judgement, however, did not fail to pull up the government for its dereliction of duty. It reads, in part, “Disobedience of the interim orders of this Court and its institutional authority … has also resulted in denial of subsidies and other benefits essential to the existence of a common citizen. … The brazen manner in which notifications have been issued making Aadhaar mandatory, despite the interim order of this Court is a matter of serious concern.”

The lone dissenter goes on to say, “If governments were free to ignore judicial directions at will, could a different yardstick be applied to citizens? … Confronted with a brazen disregard of our interim orders, I believe that we have no course open except to stand firm.”

Justice Chandrachud indeed stands firm, and comes down heavily on the fraudulent passage of the Aadhar Bill as a money bill, something the other judges naively accepted in the name of the Speaker’s prerogative. He brands this stratagem adopted by the ruling party through the agency of the Speaker as a “fraud on the Constitution” and explains why it is so:

“A decision of the Speaker of the Lok Sabha to declare an ordinary Bill to be a Money Bill limits the role of the Rajya Sabha. The power of the Speaker cannot be exercised arbitrarily in violation of constitutional norms and values, as it damages the essence of federal bicameralism, which is a part of the basic structure of the Constitution. Judicial review of the Speaker’s decision, on whether a Bill is a Money Bill, is therefore necessary to protect the basic structure of the Constitution.” …

The minority verdict reaches its logical culmination when it declares, in the penultimate paragraph of “Conclusion”:

“The entire Aadhaar programme, since 2009, suffers from constitutional infirmities and violations of fundamental rights. The enactment of the Aadhaar Act does not save the Aadhaar project. The Aadhaar Act, the Rules and Regulations framed under it, and the framework prior to the enactment of the Act are unconstitutional.”

Bhima Koregaon Arrests: SC Condones Muzzling of Dissent

We all know the background and the facts of the PIL filed by Romila Thapar and others in the apex court; so let us come straight to the core issues.

One of the serious charges the Pune police levelled against the arrested human rights activists and lawyers – not in court but in press briefings -- was that they were involved in a plot to kill Prime Minister Narendra Modi. Clearly, this was a politically motivated attempt to instigate a media frenzy against the accused. The majority in the Supreme Court bench hearing the PIL chose to turn a blind eye to this crucial fact, as also to the serious procedural lapses (e.g., the witnesses who attested the arrest and search memos were not local residents – they were brought from Pune) on the part of the Maharashtra police. It refused to go into the merits of the evidence presented and declined the prayer for a SC-monitored SIT investigation. It only granted a partial and temporary relief by converting the arrests into house arrests for a limited period, during which the activists were allowed to appeal for bail in the concerned courts.

Justice Chandrachud strongly disagreed with this docile position. He observed,

“The course of the investigation was sought to be deflected by alleging (in the course of the press briefings of the police) that there was a plot against the Prime Minister. Such an allegation is indeed of a serious order. Such allegations require responsible attention and cannot be bandied about by police officers in media briefings. But during the course of the present hearing, no effort has been made by the ASG to submit that any such investigation is being conducted in regard to the five individuals. On the contrary, he fairly stated that there was no basis to link the five arrested individuals to any such alleged plot against the Prime Minister.”  

Referring to this trickery, which he called “using electronic media selectively for shaping public opinion”, Chandrachud said that the Maharashtra police was biased and could not be trusted2.  “Court has to be vigilant to ensure the liberty of those who take up unpopular causes. Voices of opposition cannot be muzzled because it is a dissent”, he asserted, and held that a court- monitored investigation by SIT was necessary.

How Justice Was Done To Binayak Sen and Gautam Navlakha

The veracity of the minority view stands substantiated by several other judgements. We would like to mention two important instances.

Writing in The Wire, former Supreme Court judge Markandey Katju recalled how the bail applications of Dr. Binayak Sen, who was branded a Maoist supporter and arrested in 2007 on apparently trumped-up charges, were rejected by the Chattisgarh high court and the Supreme Court. Sen’s second bail application by chance came up before a SC bench presided over by Justice Katju (because the judges who had rejected the first bail petition – and probably would have done the same if the second appeal also came to them, as it normally should have if they were available -- were on leave for summer vacation). Going through the papers of the case, Katju was prima facie convinced that it was a fabricated case and therefore granted bail in a minute.

The former judge goes on to explain why this approach is jurisprudentially correct:

“The correct approach of the court should have been to apply the ‘clear and present danger’ test of Justice Holmes of the US Supreme Court in Schenck vs US and Abrams vs US (which have been approved by the Indian Supreme Court in Govt of Andhra Pradesh vs P. Laxmi Devi). In other words, the court should have enquired whether there was any clear and present danger of a violent uprising by the actions of the accused. … it seems prima facie that the accused [in the Bhima Koregaon case – A Sen] are not guilty of any offence, as by their activities, even assuming the material presented before the court was not fabricated, they posed no clear and present danger to the state.

Hence the least what the Supreme Court should have done was to have released the five accused on bail.”

A similar view was taken by the Delhi High Court when on 1 October it quashed the trial court’s transit remand order on Gautam Navlakha and set him free. After a detailed examination of the conduct of the trial court, it ruled:

“With there being several non-compliances of the mandatory requirement of Article 22 (1), Article 22 (2) of the Constitution and Section 167 read with Section 57 and 41 (1) (ba) of the Cr PC, which are mandatory in nature, it is obvious to this Court that the order passed by the learned CMM on 28th August, 2018 granting transit remand to the Petitioner is unsustainable in law. The said order is accordingly hereby set aside.”

Why could not the top court take such a sensible approach in deciding the PIL filed by Romila Thapar and others?

Have we Learnt from Justice Khanna’s ‘Great Dissent’?

If one goes beyond the immediate circumstances of this case and looks for its wider and longer-term significance, one would recall Justice Khanna’s illustrious dissenting verdict in the ADM Jabalpur vs. Shivkant Shukla case, where he ruled that citizens’ fundamental rights could not be suspended during the Emergency. In last year’s Puttaswamy verdict, Chandrachud quoted Justice Khanna:

“The impact upon the individual of the massive and comprehensive powers of preventive detention with which the administrative officers are armed has to be cushioned with legal safeguards against arbitrary deprivation of personal liberty if the premises of the rule of law is not to lose its content and become meaningless…”

Respectfully taking the cue from the late jurist, Chandrachud said, and other judges in the bench concurred with him,

“The power of the court to issue a Writ of Habeas Corpus is a precious and undeniable feature of the rule of law… A constitutional democracy can survive when citizens have an undiluted assurance that the rule of law will protect their rights and liberties against any invasion by the state and that judicial remedies would be available to ask searching questions and expect answers when a citizen has been deprived of these, most precious rights.”

Such was indeed the principled position upheld by the apex court – in general terms. When the occasion arose for applying the same principle in a concrete case, that involving the arrest of activists and lawyers, only a lone dissenter came through with flying colours even as the SC as an institution got cold feet. As we have seen above, similar has been the experience in the Aadhar case. Perhaps this is the tragedy of higher judiciary in our country: the best judgements are often the minority, non-binding ones.  

Did the apex court perform better in the other politically sensitive cases over the last one year or so? We shall come to that and try to sum up the varied experience in the third and last part of this article.

[to be Concluded]

  • 1. That year the Supreme Court overruled the Delhi High Court verdict of 2009 (which had decriminalised homosexuality and upheld LGBT rights) saying, “the so-called rights of the minuscule minority” (meaning the LGBT+ people) do not deserve constitutional protection. Then in the Privacy judgement of 2017 the Supreme Court explicitly repudiated its own 2013 stance and held that the rights of even one individual are inviolable. Now the Aadhaar verdict actually takes the Court back to the insensitive, majoritarian viewpoint that interests of the minority (“some”) can always be sacrificed so long as “hundreds of millions” are benefited – a notion that militates against the Constitutional morality the apex court never tires of paying obeisance to.
  • 2. The mala fide intentions of the BJP governments in Maharashtra and in Delhi were reconfirmed when the cases against Sambhaji Bhide and Milind Ekbote – the real culprits of the anti-Dalit violence in Bhima Koregaon – were withdrawn. More recently, the Maharashtra police in its chargesheet filed with the Pune sessions court once again tagged the activists arrested on 6 June to an alleged Maoist plot to assassinate the Prime Minister.