It will also be a test case for whether the checks and balances of our constitutional scheme stand, or whether they will get blown away at the slightest whiff of executive power. It will also be a test case for whether the checks and balances of our constitutional scheme stand, or whether they will get blown away at the slightest whiff of executive power.

The challenge to Section 139 AA of the Income Tax Act, otherwise known as the Aadhaar/Pan challenge, is an immensely consequential case for the credibility of the Supreme Court. This is not the occasion to rehearse the specific arguments at stake. Some of the concerns have been expressed in a previous column. The legal scholar Gautam Bhatia’s summaries are a wonderfully accessible introduction to the arguments presented in court. But it is important to remember why this case will have huge ramifications for the institutional credibility of the Supreme Court. It will also be a test case for whether the checks and balances of our constitutional scheme stand, or whether they will get blown away at the slightest whiff of executive power.

First, the court has created a credibility crisis for itself. Its mendacious evasions on the issue of privacy rights emanating from Aadhaar have eroded its credibility. In a context where the Supreme Court has found time to take over entire private bodies like the BCCI and run them, the idea that it did not have time to conduct hearings since October 2015 on an issue of such vital importance is frankly scandalous. That delay tied the petitioners’ hand even in the case at hand, where they could not invoke the privacy-based argument. Some deft lawyerly ingenuity has injected those arguments in this case anyway. But it is an Orwellian conception of constitutional justice when petitioners cannot make arguments because ostensibly, those arguments are being heard, except there are no hearings.

Second, the state has taken an aggressively anti-rights stand, one that goes way beyond what even any moderate case for well-defined uses of Aadhaar would warrant. The idea that there is no right to privacy, or that we have no absolute right over our bodies is, in the form in which the state deploys them, chilling. We can cut some rhetorical slack for the fact that this could be a way of countering some extreme arguments that would make even reasonable administrative measures impossible. But even plausible limitations to a right, or a claim that a particular administrative measure does not actually violate a right, depend upon specifying the nature and content of the right in the first place. The state is blithely acting as if no rights were at stake. By refusing to clarify the nature and scope of these rights, the court is abetting the state’s presumptuousness. This anti-rights aggression by the state, its short shrift to protections, is actually weakening trust in the state.

Third, the delay in sorting out matters relating to Aadhaar has given the executive carte blanche to go ahead and change the facts on the ground to the point where we might be just handed a fait accompli. Governance by fait accompli is neither just, nor legitimate. The Supreme Court’s own authority and orders are being subverted in the notifications for the use of Aadhaar; the amendment to the IT Act is a backdoor means of getting what the Aadhaar Act does not seem to provide. The Supreme Court needs to decide whether its word means anything at all.

The substantive merits of Aadhaar can be debated. But the most disturbing thing about the manner in which Aadhaar has been enacted is the disregard for all institutional proprieties. Aadhaar seems to be making all institutions niraadhaar. For a long time, it operated without governing legislation. Then, the legislation came in the form of a money bill that has, in effect, nullified every principle of parliamentary accountability that we know of. It has also set a dangerous precedent which is now being deployed with impunity in legislation. Historically, the courts have created legitimacy for themselves, not by meddling in policy and governance or populist grandstanding, but by making sure that the institutional forms of a democracy are respected. The courts’ increasingly monumental silence on these issues is mystifying.

Fourth, the court has come under a lot of criticism that the sophistication of its “policy jurisprudence” falls short of the requirements of a modern economy and regulatory state. Some of this criticism may be exaggerated. But there is reason to think that the court’s understanding of complex economic and regulatory issues needs to evolve. But we are now entering a world of unprecedented technological advances. And here, the gap between the needs of our time and our laws may be even wider. Many technological changes will enable new economic possibilities. These will also have a far-reaching impact on the nature of surveillance, the threats we face, our deepest sense of self, and our moral vocabulary. They are creating new forms of power relations and vulnerability that will severely test traditional institutions.

The Aadhaar-related cases are the most significant test of whether our jurisprudence is fit for an age of technology, whether it has the care, sophistication and nuance to measure up to the challenges of our era. These cases give the Supreme Court an opportunity to establish itself as an intellectual leader in this area. It can choose to pick up the mantle or become an exemplar of intellectual abdication.

Finally, one of the court’s functions is the articulation of a constitutional morality that cuts through moral cant. In the absence of that constitutional leadership, the vacuum is filled by all kinds of specious arguments. Two arguments are particularly troubling. One is the implicit contrast being set up in the Aadhaar debate between the rights of the poor and the rights of the rich: Aadhaar for poor service delivery recipients, not for the privileged. The rich and poor are differently situated. But the core issues are similar: Aadhaar was supposed to be an enabler, not a means of denying rights. What is the redress where the poor are being denied rights? The accountability of the authentication process affects everybody. This case should be about common rights as citizens, not about different classes of people. The second is the culturalist cant going around: “Privacy is not an Indian idea”, or that foreign and comparative law is not applicable for this reason.

Of course there are cultural variations. But the idea that challenges emanating from the powers of a modern state, protecting people against the denial of rights, surveillance, data sharing, invasions of the body, can be settled by culturalist arguments is plain nonsense. The Supreme Court needs to call this bluff before it becomes legal common sense.

Not since ADM Jabalapur has the Supreme Court faced such a crisis of credibility. The urgency and clarity of the court in the Aadhaar cases will decide whether it can overcome that crisis.

The writer is president, CPR Delhi and contributing editor, ‘The Indian Express’

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