By a 4-1 vote – in judgments so bloated that they almost seem contrary to the rule of law, which requires that judges be comprehensible – a bench led by the retiring Chief Justice of India has affirmed both the constitutionality of the Aadhaar Act, and the limits placed on the mandatory use of Aadhaar numbers by the Court in previous interim orders.
Advocates of Aadhaar’s universalisation have declared victory, but the outcome would better be described as their avoidance of complete defeat.
After all they declare, “some provisions (of the Act) which we found offending are struck down, some others have been read down and some are tweaked with.” This is the beginning of a complex middle period in the evolution of Digital India.
The Court’s refusal to permit mandatory use of Aadhaar authentication by private businesses without further legislative authorisation pushes the most important issues into Parliament, where they will be decided in the context of the ‘data protection’ legislation now under consideration.
The Supreme Court has decided, apparently definitively, that it is not a violation of the fundamental right of privacy recognised last year in the KS Puttaswamy Vs Union Of India & Ors judgment for the government to collect and maintain a database of all citizens’ biometric data for purposes of authentication.
The Court has also decided that the Aadhaar Act constitutionally authorised the mandatory enrolment in the database, and use of the database as an exclusive means of identity proof, for anyone receiving benefits from the Consolidated Fund.
But despite their hundreds of pages of barely-cognisant wonder at the technical prowess represented by the building of Aadhaar, the Court ducked almost all the big questions, pushing them into the legislature or into future litigation
When all the droning has stopped, very little of life-or-death relevance to the future of Indian society in the digital age has been decided.
Even with respect to the issues they have decided, the justices concurring in the judgment have left immense gaps that future justices will have to confront.
The Court recognises that UIDAI’s ‘Verification Log’ contains enough data about the activities of citizens that a ‘leak’ would involve an unconstitutional violation of privacy. But this the Court says it need not weigh in the balance of constitutionality, because UIDAI’s computer security will eventually become ‘foolproof.’
For any contemporary policy-maker to depend on future ‘foolproof’ computer security as a basis for government decisions is absurd.
In context, the Supreme Court has essentially denied the existence of constitutional risk: judging the facial constitutionality of a scheme that would massively destroy
constitutional rights under precisely-foreseeable conditions, the Court blithely assumes the conditions away.
But sooner or later, when the inevitable compromise occurs, a future Supreme Court will be left to rue the consequences of that omission.
With respect to all the existing modes in which Aadhaar enrolment and authentication is being made compulsory that either violate the existing orders or are connected to the private market in ways the present judgment does not sanction, a further flood of petitions in the high courts and Supreme Court will now ensue.
The Court’s uncritical acceptance of the most superficial depiction of the technological facts will now be subjected to repeated judicial reconsideration.
Most distressing in this regard is the absence in the majority judgments of any constitutional realism, that is, any view of the actual consequences to real human beings of the rights and principles in describes in such high-flown prose.
The dissenting opinion of Justice DY Chandrachud is, by comparison, a lantern of inspiration. Here, as nowhere else in the 1,448 pages of opinions, a judge makes an effort to understand the real consequences of this decision.
In Dissent, Light
Justice Chandrachud expresses with clarity and simplicity the basic reality of post-Aadhaar privacy law:
The Aadhaar number is the ‘bridge’ linking all the silos of information and behavioral data collected through the vehicle of the ‘smartphone’ in contemporary networked society.
The existence of this bridge is what enables all the other modalities of privacy-invasion and surveillance, by the state or by private parties in the market.
For government to build and maintain this bridge, is to create entire classes of risks to the autonomy of us all. As always, these risks are likeliest to harm the least powerful: our children, the poor, the victims of caste, women, those who are ‘different.’
If it is constitutional for government thus to risk our rights, its interests must be of the most compelling kind, the fit between its interests and the risks incurred must be as tight as possible, and there must be no less risky means to achieve its goals.
This was the lesson that Justice Chandrachud would have had the Court teach. These were the principles the Court should not only have distilled from the reams of law review articles and foreign legal judgments it quoted but should also have applied strictly to protect our constitutional rights.
The Court here passed up its chance to be the voice of our digital future. It has left that work to other hands.
Now, as lawyers in court and as citizens in our democracy, we must take it up and continue it ourselves.
(This story was originally published on BloombergQuint. This is an opinion piece. The views expressed are the author’s alone. The Quint neither endorses nor is responsible for them.)
Mishi Choudhary is Managing Partner at Mishi Choudhary & Associates LLP, and Legal Director at the Software Freedom Law Center. Eben Moglen is Professor of Law and Legal history at Columbia University, and Director-Counsel and Chairman at the Software Freedom Law Center.