AADHAAR Judgment Analysis

AADHAAR judgment analysis

My only objective of this AADHAAR judgment analysis is to consolidate arguments on the question of punishment in case of any contempt of court proceedings and to highlight errors apparent on the face of record in the judgment. I am only analysing the majority judgment by Sikri J. I have committed multiple contempt of court in my tweets dated 26.09.2018 at the following address: https://mobile.twitter.com/i/status/1044931638881341440. Interested persons can read them. I have called CJI a terrorist, part of the judgment a joke, judgment on the whole a conspiracy of executive plus judiciary to force AADHAAR, and the judges subscribing to the majority judgment as legally illiterate.

The main issues with respect to AADHAAR were twofold: 1. Collection of biometric information, especially IRIS, is an attack on privacy and 2. The biometric information so collected along with other demographic and personal information at such a large-scale for identification of people, can be misused by the government in setting up a surveillance state. It has been noted in the judgment that petitioners conceded that the collection of biometric info per se may not infringe privacy. (I don’t know how it could be so conceded, but the court is not bound by the admissions of parties when the issue involved is of such enormous public interest. In fact, the court should have suo moto converted these petitions into PILs and allowed general public to present their submissions through a court appointed amicus curiae.) The above two concerns arose in the context of AADHAAR Act. Another legislation making AADHAAR mandatory is section 139AA of the Income Tax Act. In reference to section 139AA, the concern was slightly different. The first concern with respect to infringement of privacy by collection of biometric information was same, but the second concern with respect to surveillance state was absent as section 139AA has limited aim of protecting revenue, which it intends to achieve by linking PAN to AADHAAR, thereby protecting revenue lost due to duplication of or non-mentioning of PAN numbers.

Any enquiry into privacy infringement is carried out in three stages: 1. enquiry as to existence of a legislation infringing privacy, 2. enquiry as to legitimate state interest in bringing into force such a legislation, & 3. enquiry as to the proportionality of infringement of privacy to the state interest intended to be achieved through the legislation. Strictly speaking, the concern of surveillance state is part of the third stage of the enquiry, i.e. proportionality. However, the court dealt with it separately, albeit reminding itself time and again that the two concerns of surveillance state and proportionality are inter-linked. My main issue is with respect to treatment of section 139AA in the judgment. However, it can’t be tackled without referring to the judgment with respect to the AADHAAR Act. Moreover, I have charged judiciary with conspiracy, which has been done mainly in reference to judgment with respect to the AADHAAR Act, so the relevant aspects from both parts of the judgment are discussed hereinbelow.

As far as the infringement of privacy by collection of biometric information is concerned, there was an argument from the respondent that the collection of biometric information doesn’t raise any expectation of privacy as the information collected, i.e. fingerprint plus IRIS, was minimal info, and that the same is already being collected for issuing other documents like passport, driving licence, etc. The contention of no expectation of privacy was rejected with respect to the AADHAAR Act holding that the information was not only being collected but also being processed for the purpose of authentication and the valid privacy concerns can arise thereon, and also that the state was collecting this data for further processing and therefore enquiry into the issue of proportionality has to be carried out in any case. However, the contention was upheld with respect to section 139AA, I. T. Act, though not in so many words, but the keen reading of para 420 of the judgment will make it obvious. The observation of the court that fingerprint and IRIS is minimal info is an error apparent on the face of the record. Simple reading of para 53(1) & 54(4)(b) of the judgment makes it abundantly clear that fingerprint and IRIS are being used alternatively, not jointly, to identify a person. Thus either fingerprint or IRIS, not both together, is minimal info. The submission of the respondent that the said minimal info was already being collected for issuing other documents like passport and driving licence, is a white lie. I can vouch that no IRIS is collected for obtaining driving licence as I have recently got my driving licence renewed. And as per my belief from the information obtained from the internet, there is no biometric requirement whatsoever at present with respect to passports. There were talks of incorporating AADHAAR into the airport management system, but the same can’t be done now as the judgment under analysis has limited the scope of AADHAAR Act only to “benefits” and “services” read ejesdum generis to “subsidies.” In fact, the UK has shelved IRIS after 2011. Some Muslim countries like UAE, Jordan and Pakistan are using IRIS only for limited purpose. The USA is using it in a limited sphere for crime detection. Canada and Netherland are using it for a limited purpose at airports. No country, whosoever, is using IRIS at a scale that India is using it under AADHAAR. (Please visit this Wikipedia page: https://en.m.wikipedia.org/wiki/Iris_recognition.) This part of judgment has been obtained by the respondent by playing fraud upon the court, which qualifies as an error apparent on the face of the record. If it is to be assumed that the court took judicial notice of this fact, then also it is an error apparent as judicial notice has been taken on wrong presumption of facts.

Even though the court clearly reached a finding that there is no infringement of privacy by linking AADHAAR to PAN, yet it analysed privacy infringement in reference to section 139AA. However, it was only for namesake. There can be no doubt about the existence of section 139AA of the Income Tax Act, thus the first enquiry was obviously answered in affirmative. The second enquiry about legitimate state interest was also answered in affirmative holding protection of revenue as legitimate state interest, which I am not disputing as there is no error apparent in reaching such a conclusion. However, enquiry with respect to proportionality was just not carried out at all. The judgment discusses the concept of proportionality in great length at different places. I am quoting hereinbelow from para 360 of the judgment:

The cost or burdens of the measure must not clearly exceed the likely benefits, which can be described as ‘ends’ or ‘ends-benefits’ proportionality.

The likely benefit from linking of AADHAAR and PAN is a few crores of extra revenue. However, the burden of the measure is infringement of privacy by collection of IRIS of around 30 crores PAN holders as of 2017, of which 5 crores file returns. This means the 25 crores PAN holders who have obtained PANs for reasons other than filing returns will be unnecessarily burdened with infringement of privacy without any nexus with the benefit of protection of revenue, and secondly, even of those 5 crores who file returns, the duplicate or fake PAN holders detected by the government were only 11 lakhs as in 2017 as per this news reports:
http://www.freepressjournal.in/india/over-11-lakh-pan-cards-deactivated-this-is-how-to-check-if-yours-is-valid/1117041. A similar figure of 10.52 lakh individual fake card holders was also provided to the court. The court mentioned this figure in paragraph 126 of the earlier Bijoy Viswam judgment quoted in para 422 of the judgment under analyses. However, it didn’t carry out any proportionality analysis in accordance with the above quoted portions of para 360 of the judgment. The analysis is however simple and straight forward. Even if we were to assume the detection of fake PANs will increase five times (though de-monetisation figures released by RBI tell there is hardly any black money in India), you can’t infringe privacy of 30 crores people to detect 50 lakhs PAN, which would lead to an increased revenue of a few hundred crores at the best. This linking of AADHAAR and PAN is deja vu of de-monetisation. If the court had carried out any analysis whatsoever, it would have been an error of law, but the missing analysis is conspicuous by its absence in the judgment, but a finding has been reached favouring proportionality. This is no reasoned judgment and tantamount to an error apparent on the face of the record. In reference to the above, in my tweets, I have questioned the legal acumen of the judges subscribing to the judgment under analysis by asking them if they even understand the meaning of proportionality. This tantamount to calling them legally illiterate. In fact, such an analysis needed to be carried out while discussing manifest arbitrariness under article 14 as well, but there the court quoted Bijoy Viswam on “intelligible differentia”. I have called it a joke in my tweets.

Last but not the least, in my tweets, I have called the judgment on the whole a conspiracy of the executive plus judiciary to force AADHAAR, which tantamount to corruption, and therefore I called the CJI, who subscribed to the judgment under analysis, a terrorist. Let me state in what context such contemptuous statements have been made.

I have a serious issue with the presentation made by the UIDAI before the court as such tantamount to the determination of facts sans cross-examination: questions asked by the petitioners’ counsels were not cross-examination questions. However, irrespective of the illegality of the judgement with respect to the AADHAAR Act, its effect is fine because “benefits” and “services” in section 7 & 8 of the AADHAAR Act have been read down to be ejesdum generis to “subsidies”, thereby narrowing the operation of AADHAAR Act to only the marginalised sections of the society. This per se would have alleviated the surveillance concerns if all AADHAARS except those of the marginalised sections had been cancelled. But no AADHAAR has been cancelled inspite of multiple opportunities to do so.

As per the PIB release dt. 04.04.2016, UIDAI issued 100th crore AADHAAR on the even date (http://pib.nic.in/newsite/PrintRelease.aspx?relid=138555), which was only a few days after the AADHHAR Act was notified. So, the majority of AADHAARs were issued illegally before the notification of the AADHAAR Act. Section 59 of the AADHAAR Act makes all these illegal AADHAARs legal. The interesting thing is that the AADHAAR Act was passed as a money bill, and thus all illegally issued AADHAARs were made legal by Lok Sabha alone! In the portions of the judgment dealing with the challenge to the AADHAAR Act on the question of it having been passed as a money bill, there is no reference to section 59. I am not a tax expert, but it’s unpalatable that section 59 can be passed as a money bill. Btw, the arguing counsel wrt this issue was the ex-FM, under whose regime post 2012, the process of issuing illegal AADHAARs continued unabated. I find it a serious conflict of interest. The fact judiciary didn’t ask the ex-FM to recuse points towards a conspiracy.

In any case, there was a separate challenge to section 59 on the premise that pre-2016 AADHAARs were issued sans consent and section 59 can’t validate them retrospectively. The challenge was rejected, but an alternative proposition was made that those who were issued AADHAARs sans consent could opt out of AADHAAR enrolment now. I find it very convenient for the government to issue illegal AADHAARs first and then validate them retrospectively, and then the court gives the option to opt out, which option would of course will never be exercised because of the ignorance clubbed with the inertia created by the mandatory linking of AADHAAR with PAN. How can court be so oblivious to practical realities? Informed consent means consent given with complete knowledge. Where is the scope for a common man to gain knowledge of such technicalities as laid out in the judgment? I doubt if even lawyers and professors of law have understood the judgment. (I was reading one article by a law professor on this judgment. He says, in the judgment, there was a balancing act between the larger public interest of safeguarding the interests of the marginalised man and the privacy rights of the public at large; the media has also been reporting likewise; BJP spokespersons were obviously the pioneers of this propaganda; however, there was no such balancing act between the larger public interest and the privacy rights; the balancing act was between the right to privacy — the autonomy value of dignity — and the right to food, shelter, and employment — the community value of dignity — of the same marginalised man.) If lawyers and professors can’t understand such technicalities, and when the BJP government has a clear motive to force AADHAAR as made out in the present FM’s statement in the Parliament, the callous treatment to the crucial question of consent in a judgment dealing with privacy, only hints at a conspiracy between the executive and the judiciary to force AADHAAR on the ignorant public.

However, the story doesn’t end here. Before the passing of the AADHAAR Act, some interim orders were passed restraining the government from making AADHAAR mandatory except for a few benefits and services in the nature of subsidies. However, once the AADHAAR Act was passed, the mandatory linking of AADHAAR was extended left, right, and centre, including for mobile connections and bank accounts. People started receiving threatening phone calls from these entities forcing them to obtain AADHAARs. Automated phone calls would sing benefits of linking AADHAAR calling it mandatory nevertheless. PayTMs and Airtels made it mandatory to link AADHAAR to open bank accounts with them — I think even now it’s mandatory. Policemen started asking for AADHAARs of all and sundry as of right (no rule or notification was issued as such for police identification through AADHAAR, but the police is the last one to follow law and the first one to force autocratic tools; so, when they become the protagonists, you know it’s surveillance and nothing else). Of course, except for a few obstinate souls like me, everybody got AADHAAR. However, the judgment has now read down “benefits” and “services” and quashed rule 9 of the Money Laundering Rules and the relevant circular dt. 23.03.2017 of the Department of Telecommunication, which made AADHAAR linking mandatory for bank accounts and mobile connections respectively. The natural corollary of such quashing and reading down of “benefits” and “services” should have been quashing of the AADHAARS issued post passage of these rules and circulars. It is well established principle of law that where permitted use and illegal use can’t be separated, both uses have to go. But, of course, the court did nothing of the sort and also didn’t take any action against the respondents for contempt of court. The court held the said acts were done under the AADHAAR Act and were thus not contempt. In other words, the earlier interim orders passed before the AADHAAR Act ceased to have effect after passing of the AADHAAR Act. The simple question is why new orders were not passed substituting the earlier orders while earlier orders were being infringed with impunity. Even if the same were not passed, it is basic principle of law that at the time of the final judgment all status quos are restored. If the court as big as the Supreme Court of India doesn’t follow this basic a principle, the only indication is that of conspiracy of the executive and the judiciary to force AADHAAR on the ignorant public.

I have already made up my mind to leave this country unless at least IRIS is removed from the biometric info requirement for obtaining AADHAAR. I have no intention to file a review petition, nor do I want to face contempt because either way I will lose on the time in unnecessary litigation with no hope of justice. However, if I am forced to face contempt proceedings, this article is my only defence against the award of punishment: contempt is admitted.

About the Author

Ankur Mutreja
Ankur Mutreja is an advocate-cum-writer, and his blogs are amongst his modes of expression. He has also authored six books: "Kerala Hugged"; "Light: Philosophy"; "Flare: Opinions"; "Sparks: Satire and Reviews"; "Writings @ Ankur Mutreja"; and "Nine Poems"; which can be downloaded free from the links on the top menu.

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