In a landmark 4-1 verdict in 2018, the Supreme Court (SC) upheld the constitutionality of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016, but struck down section 57, which allowed the use of Aadhaar authentication and E-KYC (know your customer) by private companies to establish an identity for delivering services. Explaining its ruling, the top court said that the section struck at the heart of an individual’s privacy, a fundamental right as per the 2017 Puttaswamy judgment. This verdict was a momentous one that delineated the guardrails for government action, cognisant that the right of privacy (and the identity) of the person– declared to be a fundamental right – is sacrosanct.
According to our constitutional provisions, Parliament can undo an SC verdict by passing legislation that may run contrary to a judgment. The State has since then wanted, even tried at times, to clip the wings of individual liberties and curtail fundamental rights, often under the garb of larger public interest.
The first attempt came in 2019, when the government sought to provide voluntary Aadhaar authentication or verification of a user by a bank, by passing the Aadhaar and Other Laws (Amendment) Bill, 2019. But the top court refused to agree to a mandatory linking of bank accounts or mobile SIM cards with Aadhaar.
One of the cardinal principles enunciated in the Puttaswamy judgment is that any law that attempts to abridge a fundamental right must declare the objective of doing so. The State must further show that there is no alternative method to achieve the objective. Finally, it must prove that the law causes the least incursion into the fundamental rights of citizens and individuals to attain its goal, which is the sacred doctrine of proportionality.
When we examine the government’s attempts on the anvil of the above tests postulated in Puttaswamy and other SC judgments, they seem to fail on all counts.
The principal provision of the Aadhaar and Other Laws (Amendment) Bill, 2019, was to allow the use of an Aadhaar number for authentication voluntarily as an acceptable KYC document under the Telegraph Act, 1885 and the Prevention of Money Laundering Act 2002. But the objective of the law appeared to be a chimaera. There was no evidence of a clearly enunciated objective nor could one rationally discern any nexus with the yet to be discovered objectives. This gave rise to a suspicion that there is a gradual and creeping erosion of the fundamental right of privacy, and that generated distrust about the actions of the State.
In 2020, came another bizarre legislation — the Aadhaar Authentication for Good Governance (Social Welfare, Innovation, Knowledge) Rules, 2020, whose objectives postulated in Rule 3 read as: (1) The central government may allow Aadhaar authentication by requesting entities in the interest of good governance, preventing leakage of public funds, promoting ease of living of residents and enabling better access to services for them, for the following purposes, namely:– (a) usage of digital platforms to ensure good governance; (b) prevention of dissipation of social welfare benefits; and (c) enablement of innovation and the spread of knowledge.
What do these phrases mean? Was there any debate on them, any public discussion, or were they decided in the cloistered chambers of the executive? These rules seem to afford sufficient grounds for invalidation on grounds of “void for vagueness” doctrine or “overbroad”, when tested on the anvil of constitutional principles.
Then, last month, the ministry of electronics and information technology proposed rules to enable Aadhaar identification by private entities for “promoting ease of living for residents and enabling better access to services for them”. Were any attempts made to identify and ascertain how any entity seeking such authentication could seek to achieve any of the aforesaid purposes, whether in the state or Centre’s interest? This legislation is pregnant with potential for mischief as the term “ease of living” is undefined, nor is it made clear how one can gain “better access”, and to “which services”. If the purpose of the law is to define the rights and obligations of the governed, the proposed changes, with their vagueness, run the danger of violating the SC’s 2018 judgment.
New India is an emerging democratic giant with the individual rightfully at its core, enjoying the full panoply of fundamental rights. The morality of governance, in addition to constitutional morality, warrants that legislators do not hastily assent to laws that obfuscate the privacy or the identity of the individual by giving the rules a veneer of morality as well as a constitutional sanction.
It appears that the government is seeking to gain access to private information without specifying the reasons for such attempts. In the United States and the United Kingdom, adequate data protection laws and severe consequences are attached to any violation of the same. Unfortunately, we still appear to be many miles away from such a law. Until constitutionally valid legislation on the subject is passed by Parliament, the government should leave individuals alone in their private sanctorum because that’s what effective governments with a global vision are expected to do.
Justice BN Srikrishna is a former Supreme Court judge and an advisory board member, Council For Fair Business Practices. Swapnil Kothari is an international corporate lawyer and president, Council For Fair Business Practices
The views expressed are personal
