Editor's Note: This is the first in a two-part series analysing the judgment of the Supreme Court of India in KS Puttaswamy versus Union of India, upholding the validity of the Aadhaar project
There was a time when women were forbidden from being employed in "any part of such premises in which liquor or intoxicating drug was consumed by the public” in India. The Hotel Association of India questioned this rule for violating a woman’s freedom to choose her job, while the government justified the rule as meant to ensure the safety of women. The question before the court became whether the State could attempt to ensure women’s safety by curtailing her autonomy and freedom to choose a job. Noting that the State protects women’s safety so that they may exercise their freedom to choose jobs, among others, the Supreme Court struck down the rule in Anuj Garg versus Hotel Association in 2007.
Surely, safety measures to safeguard a woman’s freedom cannot be so strong as to negate the essence of her freedom itself, they reasoned, adding that the State should do what it can to ensure that women can be safe, despite being employed in establishments where liquor was consumed. The court felt that its task was to ensure that measures meant to protect the interests of women are "proportionate" to "norms such as autonomy, ... right to privacy et al."
Striking a discordant note
About a decade later, an almost identical question was before the Supreme Court, this time in the context of Aadhaar. Petitioners questioned the rule mandating Aadhaar-based biometric authentication for receiving welfare benefits and subsidies like ration and LPG, saying it was antithetical to one’s dignity and privacy. Besides, it was not poor implementation of the Aadhaar Act that excluded beneficiaries from receiving benefits but the very design of the Act itself: biometric authentication was a probabilistic system of identification that resulted in false negatives and positives. The Government of India defended the rule stating that authentication through Aadhaar, by scanning one’s fingerprint or iris, enlivened the Fundamental Right to Life under Article 21 of the Constitution. After all, to live with dignity and privacy under Article 21, Indians ought to be able to access food, employment and other welfare benefits, the State reasoned. No citizen could have a "reasonable expectation of privacy" over their fingerprints or iris-scans as they were not intimate aspects an individual’s life, the State said.
Once again, the question before the Court was whether the State could attempt to ensure access to welfare benefits and subsidies to protect one’s dignity, by overriding one’s right to privacy and dignity. Yet, the court upheld the rule mandating Aadhaar for welfare benefits. In the court’s words, they were concerned with “... the balancing of the two facets of dignity".
Weighing the right to privacy against one’s right to access food, shelter and employment, the court held that “inroads into the privacy rights” by compelling biometric authentication “was minimal”, when compared with the larger public interest of preventing leaks in the distribution of benefits and subsidies. This seeming assertion is backed by no reasoning other than that the State is not committing a worse infringement by tracking beneficiaries’ movements or profiling them.
When departing from precedent on a similar constitutional question, the court ought to state why. Anuj Garg answered an identical question: can the State curtail the autonomy of an individual in the name of securing the autonomy of an individual. In the Anuj Garg case, the State sought to secure security of women, and in the KS Puttaswamy case, the State sought to secure access to welfare and subsidy benefits. In both cases, the State chose autonomy-infringing means: denying women the freedom to work at establishments serving liquor, and denying citizens the freedom to choose when to share their fingerprints and iris scans with the State.
While in the Anuj Garg case, the court chose to test whether the State used "proportionate" means to achieve its aims, in the KS Puttaswamy case, the court chose to "balance" the State’s means with its aims. This approach raises many questions: what does it mean to balance two incommensurate variables such as the right to access food and employment, and the loss of the right to choose how to use one’s biometric data? Does "balancing" provide any objective outcomes, or is it likely that each of us would arrive at a different answer as to which right prevails in the balance? The KS Puttaswamy court did not even acknowledge the Anuj Garg court's considerably more concrete analysis.
There are other conceptual slips in the court's reasoning in the KS Puttaswamy case. First, the court in the KS Puttaswamy case held that only those welfare schemes that were akin to subsidies could be made conditional on Aadhaar-based biometric authentication as per Section 7 of the Aadhaar Act. In the court’s words, these include “welfare schemes of the government whereby the government is doling out such benefits which are targeted at a particular deprived class". Thus, pension, being a right, could not be linked to a mandatory Aadhaar condition.
However, the court also holds in regard to Aadhaar for school admissions that: “... requirement of Aadhaar would not be compulsory as it is neither a service nor subsidy.... having regard to the fact that a child between the age of six to 14 years has the fundamental right to education under Article 21A of the Constitution, school admission cannot be treated as 'benefit' as well".
And, if the right to education being a fundamental right under Article 21A is the reason it is not a subsidy or service, then the right to food being a fundamental right under Article 21 would imply that even food and employment could not be characterised as a subsidy or service. Yet, the court holds that the invasion of privacy for providing food, employment and related subsidies and benefits was justified as it "enlivens" the fundamental right to life and personal liberty under Article 21 (page 337).
Second, the court appears to hold that a "law" in the form of statute must validate a mandatory Aadhaar authentication. For instance, CBSE, NEET, JEE and UGC requirements for Aadhaar were held to be invalid unless they were backed by law (page 555), and demonstrably funded from the Consolidated Fund of India. Likewise, mandatory Aadhaar-PAN linkage under Section 139AA of the Income Tax Act was justified on the ground that it was introduced by law (page 490) and otherwise proportionate. Yet, in justifying PDS and MGNREGA, the court did not look for any special "law" institutionalizing those subsidies, and was content with using Section 7 of the Aadhaar Act. Does this mean that JEE, NEET, etc, are excluded only because the source of funding might not be the Consolidated Fund? If that is the case, what has Section 139AA’s validity got to do with the Consolidated Fund of India?
Turning constitutionality analysis on its head
The court finds itself so tangled because it sought to hold Section 7’s targeted disbursement of benefits and subsidies as central to the purpose of the Aadhaar project. It chose to do this to justify the Aadhaar Act as needing expenditure from the Consolidation Fund of India, to say that the Aadhaar Bill could validly be Money Bill under Article 110 of the Constitution of India. After all, one of the key questions before the court was if the Aadhaar Bill was certified as a Money Bill only to strong-arm its passage through a back door, bypassing the Rajya Sabha.
In the court’s words:
“The Statement of Objects and Reasons very categorically record that the main purpose of Aadhaar Act is to ensure that such subsidies, benefits and services reach those categories of persons, for whom they are actually meant.... Even where the state subsidises in part, whether in cash or kind, the objective of emancipation of the poor remains the goal.... It follows that authentication under Section 7 would be required as a condition for receipt of a subsidy, benefit or service only when such a subsidy, benefit or service is taken care of by Consolidated Fund of India. Therefore, Section 7 is the core provision of the Aadhaar Act and this provision satisfies the conditions of Article 110 of the Constitution.”
To hold that the expenditure from the Consolidated Fund makes the Aadhaar Bill a valid Money Bill, the court had to read down those provisions in the Aadhaar Act that had no connection with the Consolidated Fund. For instance, Section 57, the provision enabling private entities to insist on Aadhaar, was read down to exclude Aadhaar authentication that does not have a substantial nexus with appropriation of funds from the Consolidated Fund of India (page 486). Likewise, the power of UIDAI to specify the purposes for which Aadhaar can be used, in Section 23(2)(h) was limited to purposes akin to Section 7 (page 484-5). These interpretive gymnastics enabled the court to hold that all the matters in the Act were either concerned with or incidental to expenses from the Consolidated Fund of India, thus making the Aadhaar Bill a valid Money Bill as per Article 110.
This approach reveal a fatal flaw in the court’s reasoning: the court had decided that it would uphold the Bill’s passing before it tested whether the Speaker of the Lok Sabha had the power to certify the Bill as a Money Bill. The court should have first decided if the Speaker appropriately certified the Bill as a Money Bill.
This could have been the case if the Aadhaar Bill dealt “only” with expenses from the Consolidated Fund of India per Article 110(1). Evidently, it did not. Therefore the court went about reading down provisions of the Aadhaar Act, so that the pruned version of the Act would relate "only" to expenses from the Consolidated Fund of India. Needless to say, the pruned version was easier to treat as a valid Money Bill, albeit retrospectively.
Two things are crucial to note: First, it was because of the initial wide scope of the Aadhaar Bill that it was challenged for having very little to do with expenses from the Consolidated Fund of India. Had the Aadhaar Bill been passed in this reduced scope at the very beginning, there would have been no question as to the correctness of its passage.
Second, only if the Bill had been validly passed could the court have gone on to ask if the substance of the Bill violated rights to privacy and dignity. The court, however, did the reverse. It answered the questions of privacy and dignity, pruned some sections of the Act, and dealt with the constitutionality of its passage upon pruning, retrospectively. This is why the question of whether the Bill was rightly passed as a Money Bill only appears on page 457 of a 567-page opinion.
To conclude, even if one were ideologically neutral about the Aadhaar project, the approach taken by the majority judgment in KS Puttaswamy versus Union of India case leaves much to be desired in terms of consistency of logic, judicial reasoning, and constitutional law.
The author is a Bangalore-based lawyer. She tweets @MaLawdy
Updated Date: Sep 29, 2018 11:39 AM