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Supreme Court’s approach to right to privacy leaves us with questions over how the alleged infringement of a right should be determined.

A great deal has already been said about the Aadhaar judgment. In some ways, the decision is hardly a surprise. The programme was expanded under the Supreme Court’s watch. Few thought it likely that the court would entirely strike down a programme whose basic legal infirmities – from the money bill fiasco to pre-2016 enrolments – it chose to long remain silent about. The judgment is, nonetheless, a major disappointment. The majority opinion richly references legal doctrines and precedents, but applies them feebly. The decision’s approach to the right to privacy leaves us with major questions over how an alleged infringement of a right should be determined.

Ever since the Supreme Court’s unanimous decision declaring that privacy (including informational privacy) is a fundamental right, the application of this right to specific scenarios has been an open question. In some sense, both the majority and the dissenting judgments in the Aadhaar case resume matters where the right to privacy case ended its narrative. Justice A.K. Sikri’s majority verdict liberally extracts from the earlier verdict, reiterating the centrality of the right to privacy for human dignity. He proceeds, however, to adopt an astonishingly weak standard of judicial scrutiny in assessing whether indeed Aadhaar violates this right.

Also read: A verdict that shows it’s the Supreme Court of real India, not just its elites

In the right to privacy decision, although some judges had indicated a strong multi-tier standard for reviewing potential privacy violations, no conclusive preference had emerged. Justice Sikri relies on this inconclusiveness to opt for a “just, fair, and reasonableness” standard, as he characterises it. He then further dilutes the inquiry by characterising the conflict at hand as being between two set of fundamental rights – the right to privacy versus the right to food and other socio-economic rights – instead of the case involving a conflict between the right to privacy and permissible exceptions to this right. This framing is erroneous for a basic reason: Aadhaar was a state-imposed mechanism to execute the right to food rather than a facet of the socio-economic right itself. By characterising the issue as a conflict between two equally important rights, the court found a way to avoid evaluating the Aadhaar project.

This is most clearly revealed by the majority’s reading of Section 7 of the Aadhaar Act. This worrisome provision authorises the indiscriminate extension of Aadhaar to serve as a pre-condition for receipt of any service paid for from the Consolidated Fund of India. The question is whether there is sufficient nexus between this provision and the “legitimate state aim” pursued by Aadhaar (a requirement for the law to pass constitutional muster). The majority defines this aim as fulfilling “a credible system to authenticate identity of beneficiaries” and conveniently assumes that any prescription of Aadhaar for state-funded schemes will further this aim. In other words, it does not even ask this question.

The court’s reasoning is hardly self-evident. Indeed, it is false. In the vast universe of state-funded services, only few services did in fact suffer from the problem of duplicate identities and revenue losses, at least to the point where no less restrictive measures would work and the state was forced to resort to the extreme measure of using biometrics for verification. The state fully realised this, and yet used overbroad language in Section 7 to further its potential stranglehold over citizens. The fact that the majority noticed this is evident from its “hope” that the state “shall not unduly expand the scope of ‘subsidies, services and benefits’ thereby widening the net of Aadhaar”.

Also read: Our privacy can’t be stripped for right to life: What lone dissenting judge said on Aadhaar Act

To be sure, the majority did clarify that benefits should pertain to welfare schemes targeted at a “particular deprived class”. On this basis, they excluded pension-like general entitlements from the mandatory requirement of Aadhaar. But a verdict that engaged with the issues at hand would have almost certainly confined Aadhaar’s use to schemes with a demonstrable showing of revenue loss. This way, not everyone would have had to take Aadhaar cards in the first place. Moreover, those who had enrolled previously but did not want to avail any such schemes in the future would have the freedom to request deletion of their biometric data.

Justice D.Y. Chandrachud’s dissent, on the other hand, frames the challenge more accurately as involving trade-offs between a fundamental right and a possible technology-driven exception, thus making it easier to critically examine the details of this exception and the extent of rights intrusion. On the use of biometrics, for instance, he finds serious privacy violations arising from the unbridled scope for expanding the definition of biometrics, the absence of clarity on the procedure for updating biometrics, and the denial of access to an individual’s own biometric information.

Justice Chandrachud’s “proportionality” assessment examines the possibility of safeguards from the time biometric data was collected to the point of retention of such data, with an emphasis on the intended and publicly stated purpose for such collection and retention and the dangers of subsequent “function creep” to extend to new, originally unintended purposes. He therefore sees Section 7 for what it is – an overly broad tool in the hands of the state to “route more benefits, subsidies and services through the Consolidated Fund of India and expand the scope of Aadhaar”. The rubric of this provision would cover every aspect “from delivery to deliverance,” serving as a profiling “bridge across discreet data silos”. As a result, Justice Chandrachud confines the operation of this provision to subsidies, striking it down to the extent it covers services and benefits too.

Also read: Were Indian activist-elites using poor to oppose Aadhaar or were their concerns genuine?

The majority judgment is a disappointment not because of the answers that it offers, but because it does not even seriously engage with the questions at hand. The concerns are rejected in the most unfortunate manner: they are not even considered. It is easy to make grand claims about rights without seriously considering how they apply in specific instances. The real question for Indian constitutionalism is no longer what rights we have, but the tests for determining when a right is violated. Indeed, the great irony of our present jurisprudence is that we have a right to everything but are guaranteed nothing.

The author is the co-editor of the Oxford Handbook of the Indian Constitution, is a junior fellow at the Harvard Society of Fellows. His Twitter handle is @M_Khosla. Ananth Padmanabhan is a Fellow at the Centre for Policy Research. His Twitter handle is @ananth1148

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