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Fundamental right to privacy verdict is against mass surveillance & Aadhaar Act

Written By mediavigil on Tuesday, August 24, 2021 | 3:51 AM

On the 4th anniversary of fundamental right to privacy verdict wherein Supreme Court’s rare 9-Judge Bench rejected government’s position in the biometric UID/Aadhaar number case, it germane to recollect that the verdict is against mass surveillance. It makes Aadhaar Act an unjust black act. 

Justice A K Sikri authored order as part of 5-Judge Bench on Aadhaar Act failed to incorporate the letter and the spirit of the unanimous verdict of 9-Judge Bench. Justice Sikri's order of 26 September, 2018 is grossly inconsistent and ridden with illicit generalisations. He committed the unpardonable blunder of using  the words "citizens" and "residents" interchangeably revealing the fact that he was in dark about the purpose of the Aadhaar Act which is meant only for residents. He also committed the blunder of allowing linking citizens' PAN with residents' Aadhaar Number. He could not recognize the fact that Aadhaar is a brand name of Unique Identification (,UID) Number, it is not a card. It is an identifier, not an identify proof. It must be recollected that Justice D.Y Chandrachud wrote the leading order of the 9-Judge Bench on 24 August, 2017, which  was referred selectively by Justice Sikri. As part of 5-Judge Bench Justice Chandrachud authored his dissenting order consistent with the 9-Judge Bench unanimous verdict. In an apparent exercise in judicial impropriety, Justice Sikri selectively cited Justice Chandrachud's order as part of 9-Judge Bench but not his dissenting order as part of 5-Judge Bench. 

(A junior lawyer standing near the Bench on 26 September, 2018 heard Justice Sikri telling Justice Chandrachud that he had not read his dissenting order especially, the part that dealt with Money Bill. It is yet to be fully confirmed.) 

Notably, Justice Sikri's findings have been questioned by another 5-Judge Bench, especially, with regard to his inference about Aadhaar Act being a Money Bill under the Constitution. Justice Sikri did not address the question adequately although he noted government's "boast" about benefits of Aadhaar. He found Aadhaar Act partially unconstitutional. As a consequence, Section 57 of Aadhaar Act has been repealed. This Section allowed transfer of Aadhaar data with private parties Now that matter is pending before a 7-Judge Bench. The fundamental right verdict in the Aadhaar case has assumes new meaning in this backdrop. 

Pronouncing the verdict, in the 12 digit biometric Unique Identification (UID)/Aadhaar number project case, the Supreme Court’s rare 9-Judge Bench recognized that “The right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21 and as a part of the freedoms guaranteed by Part III of the Constitution” of India. It further said that “Decisions (of the Court) subsequent to Kharak Singh which have enunciated the position” and “lay down the correct position in law.” In Kharak Singh v. State of U.P. & Others, AIR 1963 SC 1295, the decision was rendered by a Bench of six judges. It categorically stated that “The decision in Kharak Singh to the extent that it holds that the right to privacy is not protected by the Constitution stands over-ruled.” The order further reads, “The decision in M P Sharma which holds that the right to privacy is not protected by the Constitution stands over-ruled”. The decision in MP Sharma v. Satish Chandra, 1954 SCR 1077) was rendered by a Bench of eight judges. 

The Court has pulverized the contention of Attorney General of India who advanced the controversial argument that the Indian Constitution does not specifically protect the right to privacy because of which Indians have been compelled, coerced and bulldozed to enroll for UID/Aadhaar number which has been rejected in countries like Germany, China, France, UK and USA. The verdict will have grave impact on the Aadhaar Act 2016 which empowers the government to deactivate the UID/Aadhaar numbers of Indians without their consent. It is likely that the Central Identities Data Repository (CIDR) of UID/Aadhaar numbers and Aadhaar Act will be declared as violative of citizens’ right to privacy. An unjust law cannot be deemed law. The Court’s position has been that unjust laws are black laws. The verdict will have positive implications for talks underway in World Trade Organisation (WTO) on e-commerce wherein developed countries want access to all of peoples’ data for free in an era where Uber-isation and Ola-isation of services is happening and attempts are underway to define goods as services. This demand is part of proceedings of WTO.    

The UID/Aadhaar number project is being implemented done with the help of foreign biometric technology companies like Safran Group, Accenture, Ernst & Young from France, USA and UK at the rate of Rs 2.75 per enrolment for all the 130 crore present Indians and all the future Indians. Apparently, under some external influence, Central Government’s stance has been insincere from the every outset. The total estimated budget of the biometric UID/Aadhaar number project has not been disclosed till date. In any case unless total estimated budget of the project is revealed all claims of benefits are suspect and untrustworthy.    

It may be recalled that in compliance of the 11 August, 2015 order of Justice J. Chelameswar headed 3-judge bench, Supreme Court's Constitution Bench comprising of Chief Justice of India, Justice J. Chelameswar, Justice S.A. Bobde, Dr. Justice D.Y. Chandrachud and Justice S. Abdul Nazeer heard the UID/Aadhaar number case on 18 July 2017 after more than 700 days.  Upon hearing the counsel for the petitioners and respondents, the Constitution Bench passed the following order: 

Court has made it clear through all its order since September 2013 till 27 June 2017 that UID/Aadhaar number is remains voluntary. Therefore, no one can be asked to produce UID/Aadhaar for anything. The Court has held that even the Aadhaar Act, 2016 does not make it mandatory. There can be no waiver of fundamental rights. Privacy is intrinsic to freedom and liberty. Constituent Assembly’s position on privacy suffers from the limits of originalist interpretation. The Court’s verdict is alive to the challenges of the digital world, e-commerce and data protection. It underlines that the statutory protection to privacy cannot be a reason to deny a constitutional right. The 9-Judge Bench comprised of Chief justice of India, Justices J Chelameswar, SA Bobde, RK Agarwal, Rohinton Fali Nariman, Abhay Manohar Sapre, DY Chandrachud, Sanjay Kishan Kaul and Abdul Nazeer.  Fundamental right to privacy and basic structure has been revealed by jurisprudential imagination of the bench.    

It is apparent that the Court has applied the doctrine of prohibition of “unconstitutional condition” which means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right. 

It is evident that the implementation of UID/Aadhaar is an exercise which is forbidden by our Constitution. If this could be done, constitutional guarantees, so carefully safeguarded against direct assault, are open to destruction by the indirect, but no less effective, process of requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion. State does not have the constitutional power to discontinue benefits due to citizens. State’s power to withhold recognition or affiliation altogether does not carry with it unlimited power to impose conditions which have the effect of restraining the exercise of fundamental rights. Infringement of a fundamental right is nonetheless infringement because it is accomplished through the conditioning of a privilege. If a Legislature attaches to a public benefit or privilege restraining the exercise of a fundamental right, the restraint can draw no constitutional strength whatsoever from its being attached to benefit or privilege. This is applicable to the Aadhaar Act, 2016.

Disregarding 9-Judge Bench verdict, the UID/Aadhaar promoters and biometric technology vendors are implementing it through legally flawed circulars, advertisements and communications through sms.  In a related case the Supreme Court in SLP (CRl) 2524/2014 Unique Identification Authority of India (UIDAI) Vs Central Bureau of Investigation (CBI) passed an order which reads as follows: “More so, no person shall be deprived of any service for want of Aadhaar number in case he/she is otherwise eligible/entitled. All the authorities are directed to modify their forms/circulars/likes so as to not compulsorily require the Aadhaar number in order to meet the requirement of the interim order passed by this Court forthwith.” The doctrine of unconstitutional conditions prohibits the State from denying citizens a benefit by making access to that benefit conditional upon citizens’ abstaining from exercising any or all of their fundamental rights. This is despite the fact that there is no antecedent right to that benefit in the first place. It emerges that no Central or State Government can coerce citizens to access subsidies by sacrificing their private data by enrolling for UID/Aadhaar given the fact that they have a right to subsidy. No Government has the constitutional power to make right to have rights condition precedent.

After the trashing of UID/Aadhaar by Lok Sabha’s Parliamentary Standing Committee on Finance and later by Rajya Sabha, the 9-Judge Constitution Bench of the Supreme Court too has trashed government’s position after seeing through the coercive and unconstitutional nature of UID/Aadhaar number project by deciding the matter of right to privacy raised by Attorney General. 

Subsequent to the verdict of 9-Judge Bench and two Constitution Benches of 5 Judges, another 7-Judge Bench will decide the constitutionality of UID/Aadhaar and the passage of Aadhaar Act as Money Bill amidst gnawing national security concerns because of involvement of foreign governments and their companies which are eyeing rich assets of personal sensitive information of present and future Indians for all times to come.  

Gopal Krishna

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