The Supreme Court’s judgement in August affirming the fundamental right to privacy elicited euphoric responses as it widened the scope of Article 21 of the Constitution, which guarantees Indians the right to life with dignity.

The immediate effect of the judgement, it was believed, would be on Aadhaar, the 12-digit biometric unique identification number that the government wants every citizen to have. If a person has the right to privacy, the argument went, how can the state insist on compulsorily obtaining her biometric information? The validity of Aadhaar will now be determined by a Constitution Bench of the Supreme Court.

But it is not just the test of right to privacy that Aadhaar must pass. An equally significant test has come up as a consequence of the apex court striking down the Muslim practice of triple talaq, or instant divorce. In its order, the court asserted the long-held constitutional norm that arbitrariness in lawmaking is a valid reason for striking down the law. In articulating what constituted arbitrariness, Justice Rohinton Nariman, who was on the nine-judge bench, struck down a previous order of the court partly upholding the validity of Section 139 AA of the Income Tax Act, which made it mandatory to link Aadhaar with the Permanent Account Number for filing income tax returns.

On October 25, Binoy Viswam, a Communist Party of India parliamentarian, went to the Supreme Court with a fresh challenge to Section 139 AA, armed with the triple talaq judgement.

Media reports over the past week suggested that the central government was rethinking its directive to link mobile phone numbers to Aadhaar. Could this be because the government has finally realised that widening Aadhaar’s scope beyond the primary objective of saving subsidy leakage was making it susceptible to judicial intervention?

Question of compulsion

In June, a two-judge bench of the Supreme Court upheld the constitutionality of Section 139 AA of the Income Tax Act. The provision made it mandatory to link PAN with Aadhaar, failing which the PAN will be invalidated. Viswam challenged this provision, passed by the Parliament through the Finance Act to circumvent the Rajya Sabha, where the ruling Bharatiya Janata Party lacks the numbers to pass legislation.

Although the bench upheld the constitutionality of the provision, it partly stayed the order requiring everyone with a PAN to immediately link it with their Aadhaar. It also read down part of the provision stating that failure to comply would mean the person had never obtained PAN.

For linking mobile numbers with Aadhaar, the government used a Supreme Court order delivered on February 6, 2017 as justification. However, its reading of the judgement was wrong: the court had merely recorded the Centre’s attempts to complete the linkage and hoped it would be done within a year as per the government’s undertaking. The Centre made it sound as though it was the Supreme Court’s instruction.

Last week, the petitioners challenging the validity of Aadhaar mentioned the mobile number problem before a bench led by Chief Justice Deepak Misra. They asked for the government to give an undertaking that it would not deny benefits to anyone for want of Aadhaar until the court decides on the biometric number’s constitutionality. Attorney General KK Venugopal sought time until October 30 to get instructions from the Centre. The government’s response would indicate whether the Aadhaar linking deadline would be extended to March 31, 2018 from the current December 31, 2017.

Potent weapon

Unlike the previous challenge to Section 139 AA that was decided in June, the petitioners this time have a more potent weapon to strike at Aadhaar.

While delivering the verdict on triple talaq, Nariman delved deep into the question of arbitrariness in lawmaking as a reason for declaring a statue unconstitutional. He had to do this as contradictory judgements over the years had muddled the question. Can arbitrariness alone be the basis for declaring a law ultra vires Constitution? Some judgements said yes, others said no.

In State of Andhra Pradesh vs McDowell and Co, the Supreme Court held that some or the other constitutional infirmity over and above arbitrariness was required to nullify a law. This, Nariman reasoned, went against past judgements by larger benches and concluded that “arbitrariness in legislation is very much a facet of unreasonableness in Article 19(2) to (6), as has been laid down in several judgments”. Article 19 (2) enables the Parliament to enact laws that reasonably restrict fundamental rights. Anything not reasonable cannot be allowed. Arbitrariness is a crucial part of the test of unreasonableness.

In fact, Nariman expressly struck down the June order, which used the McDowell case to positively argue for Section 139 AA.

Stepping back

It is thus curious that the Centre, according to the Times of India, is now reconsidering its attempt to make citizens link their mobile numbers with Aadhaar. The report quoting official sources said the Union government is considering allowing other identification documents for mobile numbers. However, such a verification process already exits. Therefore, the Centre is simply trying to sustain the status quo while sounding magnanimous by not insisting on Aadhaar.

But given the triple talaq and the right to privacy judgements, not insisting on Aadhaar for mobile numbers could be a strategic move by the Centre. Despite the courts accommodating national security as an important element in policymaking, linking mobile number and PAN with Aadhaar has been difficult for the Centre to justify as activists have argued that the problem of duplication or fake documentation could be solved without Aadhaar. A stronger verification process could do the trick.

By stepping back on mobile number-Aadhaar linking, the government may thus be trying to circumvent the test of arbitrariness and, thereby, seeking to save Aadhaar from being struck down in its entirety.