This week, a five-judge bench of the Supreme Court upheld the constitutional validity of the Aadhaar (Targeted Delivery of Financial and other Subsidies, Benefits and Services) Act, 2016, with certain restrictions.

The lead judgement, delivered by Justice Sikri on behalf of Chief Justice of India Dipak Misra, Justice A.M. Khanwalikar and himself, held that the Act was meant for the effective delivery of subsidies and government benefits, which would create a ‘unique identity’ for the hapless millions and assure them dignity as individuals. Justice A. Bhushan in his separate opinion concurred with the majority, while justice D.Y. Chandrachud authored a dissenting opinion which will certainly serve as a judgment for posterity.

The Aadhaar scheme has been riddled with controversy since its inception. The project was introduced initially through an executive order and operated for several years without any legislative backing, till a law was passed in the garb of a Money Bill in early 2016. Critics raised concerns about the lack of debate in the parliament, inadequate data protection and privacy safeguards, the possibility of state surveillance and systemic exclusion of large sections of the population, evidenced from regular media reports.

The majority opinion responded to these concerns by stating that the scheme was proportionate in its balancing of the ‘larger public interest’ involved in the distribution of resources to the marginalised with the individual right to privacy and entailed ‘minimal state intervention’. The three judges termed the safeguards within the Act ‘adequate’, without attempting to provide any justification to support this view, other than the representations made by the government.

It further directed that Aadhaar shall not be mandatory for availing banking, mobile or educational facilities, as well as access to pension and other such benefits. While expressing their reservations regarding the cases of exclusion highlighted by the petitioners, they opined that no person shall be denied benefits for want of Aadhaar, so long other valid documentation can attest to her identity.

In addition, the majority opinion read down certain sections allowing for judicial oversight in cases of access to citizen’s data, while barring use of Aadhaar data for authentication by private parties completely.

The court however failed to clarify the fate of the data already in the hands of private actors, such as Reliance Jio or Paytm. Justice Chandrachud called for destroying of such data at the earliest, but in the absence of any supervisory data authority and support from the majority on the bench, it seems uncertain how far his lone minority view would spur the authorities to action.

For many that followed closely the twisting fate of this project, the final judgement came as a foregone conclusion, not least because of the undercurrent of fait accompli providing subtext to the saga. With enrolment to Aadhaar reaching near-universal coverage, it seemed unlikely that the court would remain entirely unmoved by the loss of resources were it to bring down this massive endeavour in its entirety. The only real ‘surprise’ seems to be the strength carried by the dissident voice from the bench.

Those who stand for liberty often stand alone. Justice Chandrachud’s dissent in this case shall remain the high-watermark of judicial independence for years to come. Declaring the Act entirely unconstitutional, he lamented the impossibility of survival in India without ‘validation’ from the UIDAI. He noted with apprehension the ‘potential for surveillance’ and massive ‘data leakages’ that existed within the Aadhaar framework, and seemed acutely aware of the anguish of those excluded by the ‘vicissitudes of technology’. His forceful articulation in favour of individual freedoms will be remembered long after he vacates his seat at the apex court.

Judgment falls short

Despite the attempts made to ameliorate some of the concerns raised by the petitioners, the judgment falls short on several counts.

First, in taking a decision as pivotal to the future of the nation, the court was far too slow in its deliberation, which allowed the rapid expansion in enrolment to the scheme almost at gunpoint.

Second, for all its conviction and assurances, the majority opinion failed to establish how the concerns regarding privacy are unfounded. Further, in the absence of a Data Protection Act (the Bill is yet to be debated or ratified), how the court satisfied itself regarding the adequacy and efficacy of the redressal mechanisms defies understanding. The Act will surely undergo changes when a data protection legislation is formally introduced, though who changes the other – the dog or the master – remains to be seen.

There are more disturbing implications of this judgment that may yet emerge. There were severe protests in and outside parliament when the government steamrolled the Aadhaar legislation without the requisite approval from the Rajya Sabha. Deferring to the speaker’s decision in characterising the Aadhaar Act as a Money Bill, the majority opinion paid undue obeisance to parliamentary supremacy, legitimising this undemocratic maneuver as precedent for the future – a practice justice Chandrachud ominously termed as ‘fraud on the Constitution’.

Undermining its own authority

Far more disconcerting is the court’s implicit undermining of its own authority. Since the inception of the Aadhaar hearings, the court has time and again passed interim orders which directed the government to not make Aadhaar mandatory for availing benefits, till it reached its final verdict. The government, in flagrant violation of such directives, zealously pursued its goal of reaching universal coverage for the scheme. Instead of rebuking the government for its failure in enforcing its orders, this judgement lauded the efforts made by the executive in promoting Aadhaar by conflating its purposeful proliferation with presumed popularity.

For the proponents of Aadhaar, the judgment is indeed a victory, tempered by the cautionary notes sounded through the court’s familiar aversion of the ‘private sector’. It could usher in an era of reform, the ramifications of which may echo across generations.

For those opposing the scheme, however, the battle has just begun. The price for freedom will be paid through their watchful vigilance, while the common man’s fate hangs in balance, having already surrendered his biometric data to government and corporates alike.

Agnidipto Tarafder is an assistant professor at the West Bengal National University of Juridical Sciences, Kolkata, where he teaches a course in the Law of Privacy.