Supreme Test

Aadhaar-related cases could tell us whether our jurisprudence is fit for an age of technology

Written by Pratap Bhanu Mehta | Published:May 6, 2017 12:05 am
Aadhaar card, Aadhaar, unique identification, SC Aadhaar, PAN cards, Aadhaar PAN cards, Fake pan cards, Biometric data, Aadhaar news, India news, Indian Express 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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    Amit Singh
    May 8, 2017 at 12:44 pm
    Signs are ominous Mr. Mehta. I have gut feel that supreme court is again going to fail its citizens as in ADM Jabalpur.
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      Gopal
      May 8, 2017 at 4:10 am
      This article shows the nexus that exists within sections of our intelligentsia and the judiciary to thwart democracy and good governance. The place to debate Aadhaar is the parliament and even in these papers. The court is the place to argue the law not to create new law. Instead, the article throws out meaningless terms like “cons utional morality” which properly translates into “my morality dictated by my politics to create my laws”. It is as deeply anti-democratic as it gets. Aadhaar solves a number of critical delivery problems and reduces the scope for corruption by eliminating the possibility of duplication. Our intelligentsia and our judiciary is master of rhetoric – they speak in the name of the poor to push for policies that increase corruption and worsen the delivery of services.
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      1. N
        Nayantara
        May 7, 2017 at 9:52 pm
        As usual, only Indian Express has the guts to publish articles like this.
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        1. S
          Seshubabu Kilambi
          May 7, 2017 at 8:05 pm
          Aadhar test will be the ' foundation' of surveillance
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          1. M
            Murali
            May 7, 2017 at 4:32 pm
            Dear Mr. Mehta, Please read the article given below it shows how shallow your argument is. As a learned person i expected an holistic vision from you but not a unidirectional one.Without casting any malifide opinions about your, may we request your to read this article and provide a solution and not a problem. : economictimes diatimes /news/economy/policy/big-brother-100-small-brothers-are-watching-you/articleshow/58560199.cms Kind regards Murali Karri
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              N S
              May 7, 2017 at 1:25 pm
              what this man essentially saying is better SC struck down Aadhar linkage, if they do not do so myself and our ilk will abuse SC
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                TIHAEwale
                May 7, 2017 at 1:17 pm
                Indian Judicial system is in shambles. court staff still play mischief with summons as they get bribed by advocates. what is preventing court from emai summons to the concerned who have provided e mail address , the court official will not use email for summons because then the source of bribe money is sealed
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                  Venkatarama Muthuswami
                  May 7, 2017 at 11:40 am
                  The form, colour, level of maturity and intelligence of both Modi sarkar and the present day justice system is after all the product of our generations of mediocre education and societal upbringing, at home and outside in the ommunity. So, we have geared ourselves to silently live with such human rights violations, Maybe, hopefully, in the Hindu Vaikundom there will be true democracy, so never mind about these short term injustice in our Bharat.
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                  1. J
                    Joe
                    May 7, 2017 at 10:01 am
                    The government wants absolute transparency from it's citizens, which private firms might also be easily able to access, but they (the govt) do not want to be in the least bit transparent to the citizens and their sycophant supporters believe that privacy is something only corrupt people wish to protect.
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                      BHAGWAT GOEL
                      May 7, 2017 at 8:27 am
                      BHANU JI, OUR JURISPRUDENCE IS OK BUT OUR LAWS AND JUDGES ARE NOT OK. WORSE OUR POLICE AND INVESTIGATING AGENCIES. BEHIND THE CHAIR OF ALL JUDGES IS SATYAMEVA JAYTE. TRUTH IS MOST DISCOUNTED COMMODITY. EVEN IN LAW THERE ARE NUMBER OF JUDGEMENTS THAT SAY '' TECHNICALITIES SHOULD NOT COME IN THE WAY OF JUSTICE. ONE THING IS GOOD MODI THROWING OUT THOUSANDS OF OUTDATED LAWS. I THINK REAL CHANGE WILL COME AFTER 2019 WHEN MODI SARKAR WILL GET MAJORITY IN RS.
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                      1. S
                        SP
                        May 7, 2017 at 6:26 am
                        Why should the country dance to the tune of small number of opinion makers? This notion of overly liberal nation is not shared by the masses. Nor they are happy that India is a soft state where NGOs that lecture the Government feel they can get away by not fi tax returns. After Award vapsi failed people are focusing on Aadhaar vaps. We need to secure the technology it is accepted . But in the name of privacy we can not allow all kinds of loot to continue. What will these people say if Government chooses to combine all IDs into one, with several other secondary IDs for things like PAN, Driver;s license and so on.
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                        1. C
                          Christina Brittn
                          May 7, 2017 at 5:17 am
                          Become rich today and take the risk of transforming your own life. Try and get a blank ATM card today from (Mr Williams) and be among the lucky ones who are benefiting from this cards. This PROGRAMMED blank ATM card is capable of hacking into any ATM machine,anywhere in the world. I got to know about this BLANK ATM CARD when I was searching for job online about a month ago..It has really changed my life for good and now I can say I'm rich because am a living testimony. The least money I get in a day with this card is about $4,000. i can also withdraw up to $65,000 a month now and then I keeping pumping money into my account. Though is illegal, there is no risk of being caught ,because it has been programmed in such a way that it is not traceable, it also has a technique that makes it impossible for the CCTV to detect you..For details on how to get yours today,Email the hackers on: williamshackers@hotmail ."
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                            anandap
                            May 7, 2017 at 9:16 am
                            It is not only court but also a section of intelligentsia have indigestion problems when hearing about digital governance, Aadhaar ID for social benefits distribution etc. Their hypocratic crocodile tears about AAdhar misuse or personal information security problems arises only due to Modi's government fast measures of this Aadhaar implementation as an ID for all purposes. While all user friendly measures of Western countries governance are lauding without murmurs, similar things are objected when trying to implement in our country, is the typical Indian Luyten classes partisan opposition! Enjoy abroad but oppose in home is always their double stand!
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                            Sudheer Thaakur
                            May 7, 2017 at 12:44 am
                            people like the author refuse to acknowledge that ground reality of a technologically wired interconnected world is starkly different from a century ago . role and obligations of state has drastically changed, we need to redefine the balance between individual rights and society's obligation to protect all especially the vulnerable. there is no place for individualism fundamentalists.
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                              M.s. Venkatraghavan
                              May 7, 2017 at 12:00 am
                              India is strugg to fight against blackmoney bigwigs who had established themselves against the Nation. Now Government wants to bring them to book by interconnecting PAN card, Bank accounts, AADHAR card. Such procedures may not give success for Government in hand black money menace. However a beginning must be made. Under such conditions such linking of do ents cannot be considered as breach of privacy as these are essential to guard the Nation against fraudulent methods against flight of black money to safe havens.Hence Courts must not become stumb block and not to meddle in the way of such important measures taken by Governments.
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                                ak dev
                                May 6, 2017 at 11:49 pm
                                Most of the concerns about misuse of Aadhaar id are imaginary just like the noise about hacking of EVMs. The designers of Aadhaar are smarter than the noise makers.
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                                  anandap
                                  May 6, 2017 at 11:25 pm
                                  It is not only court but also a section of intelligentsia have indigestion problems when hearing about digital governance, Aadhaar ID for social benefits distribution etc. Their hypocratic crocodile tears about AAdhar misuse or personal information security problems arises only due to Modi's government fast measures of this Aadhaar implementation as an ID for all purposes. While all user friendly measures of Western countries governance are lauding without murmurs, similar things are objected when trying to implement in our country, is the typical Indian Luyten classes partisan opposition!Enjoy abroad but oppose in home is always their double stand!
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                                    Sajad Padder
                                    May 6, 2017 at 9:20 pm
                                    PBM is Rahul Dravid (the wall) against an intruding state.
                                    Reply
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                                      RJ
                                      May 6, 2017 at 9:01 pm
                                      This article is a classic case of throwing up a thousand words with absolutely zero content. Despite this long verbal diarrhea, the author does not articulate even a single concrete, well-reasoned objection to the Aadhaar mandate. This is the sad state of our columnists and news media.
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                                        Seshubabu Kilambi
                                        May 6, 2017 at 7:50 pm
                                        This is imposing surveillance through scientific/ pseudo- scientific arguments to trap public consciencev
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                                          Dr Bhardwaj
                                          May 6, 2017 at 5:25 pm
                                          Well Written Essay. Thanks For The Concerns Expressed In It.
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                                            Sudhansu Mohanty
                                            May 6, 2017 at 4:06 pm
                                            Brilliantly articulated. Time for the Supreme Court to think, mull hard, and cut through the government's swathe of moral cant that seems to be acting as an enabler to confound the common man through specious arguments bandied about to dismiss legitimate concerns. I couldn't agree more with the writer that not since the ADM Jabalpur case (of the infamous emergency days) has the Supreme Court been confronted with a case that is going to severely test its credibility.
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                                              ak dev
                                              May 6, 2017 at 11:24 pm
                                              Where is your common man that anti-nationals invoke whenever they loose argument. The real common man has repeatedly sided with the nationalists. Anti-nationals like this author are completely exposed and they can't now hide behind the common man. Common man has seen these r a s c a l s creating noise during Demonetization and responded with firmness during subsequent elections. They had cried that they can't bear the sufferings of common man but in fact they are the ones who are suffering.
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