The Supreme Court’s Aadhaar Judgment Uses Flawed Logic

Many years ago, in the aftermath of the creation of the famous basic structure doctrine, the legal scholar Upendra Baxi had written a much celebrated article titled, “The Constitutional Quicksands of Kesavananda Bharati and the 25th Amendment.” In it, he argued that the decision generates many paradoxes and that it was likely to be the Indian Constitution of the Future.

However, he added that that the judgment was likely to create an illiterate bar because of its sheer length. He concluded by adding that the “illiteracy of the literate is more pernicious for development than that of the illiterate.”

Today, with the majority judgment in the Aadhaar case, it seems his words have come to fruition. Let me point out four such instances as illustration.

Different Strokes for Different Rights

Firstly, the majority states that since the Constitution in Article 21A has made education between the ages of 6 to 14 years a fundamental right, such a right cannot be predicated on the obtaining of an Aadhaar Card and the admission of a child in school is neither a subsidy nor a service.

However, Justice Sikri fails to note that the same logic applies to the right to food under the National Food Security Act, 2013 and the guaranteed right to employment under the National Rural Employment Guarantee Act, 2005.

It is a fundamental principle that rights do not vary in their effect and the hierarchy of rights is relevant only for judging their own validity. Hence, a rule or regulation has to be tested for its validity against the parent legislation; the legislation has to be tested against the Constitution; and a Constitutional amendment can be tested on the touchstone of the basic structure.

Secondly, Justice Sikri strikes down the linking of bank accounts and mobile numbers with Aadhaar on the grounds that this does not satisfy the test of proportionality. The majority states that there can be no presumption of criminality and suggests that “those having modest balance and routine transactions can be safely ruled out.” Why is the same logic not applied to taxpayers? Can all taxpayers be presumed to be evaders?

Does SC Judgement Render the Rajya Sabha Otiose?

Thirdly, the Court accepts a mere ritualistic incantation of money laundering and black money does not satisfy the test of proportionality in the case of bank accounts, but accepts the same in the case of mandatory linking of Aadhaar to PAN.

The same logical fallacy follows when the Court stated that mobile linking fails the proportionality test in so far as the State has not demonstrated the necessity for the linking, and the balancing of the legitimate state interest and the invasion of the right to privacy.

Fourthly, the majority by accepting that the Act could have been passed as a money bill has ensured that the Rajya Sabha is virtually rendered otiose. Governments will henceforth continue to bypass the Rajya Sabha at their convenience by getting the speaker to certify all inconvenient bills as money bills regardless of their content.

Just as Parliament can make bad laws, Courts can also render bad judgments. But a judgment this bad, verbose and having no internal inconsistency, requires the institution to seriously introspect as to whether the Supreme Court is fulfilling the constitutional trust reposed in it by the founders as their continuing voice. This is a Dredd Scott moment in our constitutional history.

(Suchindran is an advocate practicing in the Supreme Court of India. He assisted Senior Advocate Arvind Datar in the matter. He has recently joined the chambers of KK Venugopal, Attorney General for India. Views are entirely personal. The author tweets @suchindranbn. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same)