What next for Aadhaar?

It is a major relief that a long-cherished right of privacy has been reaffirmed as a fundamental right by a nine-judge bench of the Supreme Court and unanimously so.   It is important to keep in mind that the privacy challenge arose in the context of the constitutional challenge to the vires of the Aadhaar project.  Following this judgment, there remain a number of issues yet to be decided in the case and it is hoped that in the coming days and weeks, the Supreme Court will be able to constitute a bench of appropriate strength to hear and decide those issues.

First, the judgment has made it clear that any collection of personal information would necessarily have privacy implications and, therefore, must have a law to back the same. This automatically implies that the entire exercise of Aadhaar that happened prior to the coming into force of the 2016 Aadhaar Act is necessarily unconstitutional. Although, there is a provision of the 2016 Aadhaar Act that deems all the previous actions to be validly done under the 2016 Act, whether such a broad-brush ratification is permissible under the Constitution of acts that ab initio had no constitutional basis is a question to be decided by the court. A further question on what can be done by such data that was collected without a legal basis is also something to be decided by the court.

Second, whether Aadhaar Act should have been and could have been passed as a Money Bill is still a question before the Bench. A decision against the Act on this question would render the Act stillborn essentially having no legal effect.

Third, whether Section 7 of the Aadhaar Act that empowers governments to make Aadhaar mandatory for subsidies, services and benefits drawn directly from the consolidated fund of India is an unconstitutionally unconscionable bargain and whether the State can specify conditions that infringe on people’s fundamental rights such as privacy and bodily integrity for enabling them access to their legal rights and entitlements.

Fourth, whether use of biometrics and online authentication for general purpose identification and decision-making is unconstitutional, given that it irreversibly tilts the scales of control in favour of the state and away from the control of the person.

Fifth, whether online authentication, capturing of authentication details and the possibility and promotion of convergence of data due to seeding Aadhaar numbers in disparate databases is an infringement of the fundamental right to privacy.

Sixth, whether the use of biometrics for deduplication and authentication is so manifestly scientifically irrational that it would also be unconstitutional?

Seventh, whether the use of foreign private companies and their proprietary biometric matching algorithms, that is at the heart of the Aadhaar project is a national security issue.

Additionally, there are peripheral but no less significant issues such as the arbitrary power of the authority to deactivate anyone without notice; the absence of a natural justice mechanism in grievance redressal; all the control of initiating prosecution with the authority to even remedy situations such as identity theft, impersonation etc.; the shocking provision that enables the central government to issue binding directions to the authority including taking over all the functions of the authority; and the Section 57 of the Act that allows usage of Aadhaar system by private companies.

Even as the Supreme Court is yet to consider any of these issues at length, the government is in a great rush to coerce people into linking various aspects of their life with Aadhaar despite all the problems such a push is causing. The widespread exclusion that such a hasty push is causing has been well documented, as is the lack of basis for any of the astronomical figures of savings that is being put out by the government in support of adopting Aadhaar for various purposes. It is hoped that this judgment would clear the decks for the Supreme Court to not only commence hearing on these issues, but also reiterate its multiple earlier orders that Aadhaar may not be made mandatory till the case gets decided one way or the other.