The general impression of the Supreme Court’s judgment last week in the Aadhaar-PAN linking case was that the court had taken the middle path. On Friday, the bench upheld the government’s law mandating linking but sought to tone down the penalty for those without Aadhaar. Three days after the judgment was delivered, however, it has become clear that the one concession to petitioners appears both tentative and ambiguous. Besides, the rest of the order uncritically accepts the contentions of the government. Middle path this is not.

The judgment examined whether the government had the constitutional authority to mandate the linking of the Permanent Account Number, used for banking and tax purposes, to Aadhaar, a controversial project to give every Indian resident a 12-digit unique identity number attached to their biometric data. The petitioners had challenged the case on a number of grounds, saying the PAN-Aadhaar rules violated the Supreme Court’s own previous orders that Aadhaar would remain voluntary and also denied several fundamental rights.

The final order concluded that the government was in its rights to mandate the linking of PAN and Aadhaar and force people to quote their Aadhaar numbers in income tax returns. It did, however, decide that the penalty for not linking PAN to Aadhaar, which the government had decided would be invalidating the PAN card, was too harsh. It suggested Parliament “tone down” this provision. Read this for a full examination about the judgment.

While the order adds additional material to the battle over Aadhaar, which critics believe is a draconian project that violates a fundamental right to privacy and has ended up as a tool of exclusion, it almost raises as many questions as it settles.

1. How many fake Aadhaars have been issued?

One of the crucial arguments put forward by the government was that linking the PAN to Aadhaar would help eliminate bogus PAN cards, which it claimed was a significant menace that aided the flow of black money. The petitioners pointed out, however, that the actual number of fake cards as per the government’s own figures was just 0.4% of the total number. The court concluded that it “cannot go by percentage figures” and that there was enough concern about fake PANs to force a link to Aadhaar.

But for this link to have any value, there would have to be evidence that Aadhaar is more foolproof than PAN cards. However, the government simply will not put out that information. On Sunday, PTI reported that the Unique Identification Authority of India, the body that oversees Aadhaar, refused to answer a Right to Information request regarding the number of fake or duplicate Aadhaars there are, citing national security.

The UIDAI has since 2010 suspended 34,000 operators – private individuals who carry out enrollment for Aadhaar – for “polluting” the Aadhaar database. The body has also received hundreds of complaints connected to things like two Aadhaars registered for the same person, fake data and Aadhaar’s being registered for cows, dogs and gods. In 2013, it was reported that UIDAI had to cancel as many as 3.84 lakh fake Aadhaars, although in part because of a specific procedural loophole. Without UIDAI disclosing the numbers of fake and duplicate Aadhaars, how can we be certain it is more foolproof than PAN, which has just 0.4% fake or duplicate instances?

The judgment takes all the government’s arguments at face value here, accepting the contention that Aadhaar is the “most advanced and sophisticated infrastructure,” and the “only robust method of de-duplication of PAN database.” That conclusion can only really come when UIDAI puts out all its numbers.

2. Is the punishment proportional?

One of the main challenges in the matter was whether the penalty imposed here, of invalidating a person’s PAN if they do not link it to Aadhaar, infringes on a fundamental right. The government is allowed to infringe on fundamental rights as long as this infringement by the state is proportionate in relation to the stated goal of the law. In this case, this means the court has to conclude that the aim of weeding out fake PAN cards should be significant enough that the government is allowed to infringe on Article 19(1)(g) of the Constitution, which guarantees a fundamental right to any occupation.

And indeed, the court even accepts that canceling PAN cards infringes on this right. But while it begins a discussion on the proportionality of the punishment, the conclusion never comes. The court simply accepts the punishment, without measuring whether it is proportional or not, and moves on.

This is even more egregious because, as lawyer Gautam Bhatia explains,

“the proportionality test was introduced by the author of this judgment – Justice Sikri himself – in his judgment in the NEET case. It is truly extraordinary that a judge who introduces a doctrine in one judgment, writing for a Constitution Bench, simply refuses to apply it a few months later when sitting as part of a two-judge bench!”

3. What about those coerced into getting Aadhaar?

One presumption that underpins the judgment is the belief that Aadhaar truly has been voluntary until this stage. The court takes the government’s contention at face value, when it says that Aadhaar, as per both the original expansion of the project and the Aadhaar Act passed in 2016, was voluntary. The judgment only gives relief to the few remaining people who do not have Aadhaar, either because they could not get it or do not want to, saying their PAN cards cannot be invalidated.

But it presumes that everyone else who has an Aadhaar voluntarily chose to get it, and can be forced to link it to PAN. The reality is quite different. Though successive governments have claimed Aadhaar is voluntary, and even had to be told by the Supreme Court to ensure this is the case, the spread of the unique identity has included much coercion and threats from authorities of being excluded from various services. This goes as far as mandating that babies enrol in Aadhaar before they get a birth certificate, a move that obviously means there is no consent involved.

The order also doesn’t take into account those who might have changed their mind about the project, once they realised how shoddily crucial data is being kept, as Kritika Bharadwaj points out:

“It also overlooks that instances of data leaks came to light only recently, prompting several citizens to have second thoughts about the project only after they had enrolled. But most importantly, the judgment ends up protecting only those who are privileged enough to not depend on the state for benefits and services, and have thus managed to remain un-enrolled.

4. Where is the Constitution bench?

Some of these questions however boil down to the fundamental issue of whether the Indian government has the power to fundamentally change the relationship between the citizen and the state. Critics of Aadhaar have argued that allowing the government to store biometric information and hand it out to both state and private actors violates Article 21 of the Constitution, which they believe includes a fundamental right to privacy. The court, when faced with numerous petitions making this argument, decided to refer them to a Constitution Bench, to decide this all-important question.

Yet, more than 670 days since that reference, the court has yet to set up the bench. Aadhaar now covers the vast majority of Indians, at least per government claims, and yet it has been permitted to expand despite a giant cloud hanging over it, questioning its very basis. The PAN-Aadhaar judgment acknowledges that Aadhaar will have to pass the stringent test of clearing Article 21, but it leaves all those matters to the Constitution Bench, which shamefully has not yet been constituted. Until then, no matter how much the government expands Aadhaar, the fact remains that its very existence could be seen as a potential violation of the Constitution.