Aadhaar Judgement….2.. The Answers and Conclusions of the majority

This is a continuation of the earlier article “Aadhaar Judgement..1..Debate the Areas where Clarity is Required”

The Aadhaar judgement is said to be the second longest case in terms of continuous hearing next only to the Keshavananda Bharati case in 1973 and underscores the importance and urgency assigned to the case.

The petitioners tried to argue that Aadhaar was unconstitutional, constituted an instrument of state oppression through surveillance and had to be scrapped. The data leaks of Aadhaar was quoted to argue that the system could cause serious privacy breach issues since the biometric of citizens could leak. They also argued that there was denial of basic services because of the failure of Aaadhaar authentication. In particular, the mandatory linking of Aadhaar to PAN cards, opening of Bank accounts were alleged to be an over reach of powers of the Government.

The net demand was that Aadhaar had to be scrapped.

The Government argued that it was useful to ensure that Direct Benefits of the Government reach the right persons, reduce/eliminate corruption. Even during the trial, Aadhaar introduced the Virtual Aadhaar ID and made several moves to strengthen the system to ally the fears of lack of security. UIDAI also explained the security practices and tried to convince that the system had a useful role in the Governance and did not violate Privacy.

Unfortunately, the case became a battle between the Government which was using Aadhaar Unique ID to curb black money and those who were simply Anti-Modi. All other principled explanations were only excuses.

In the entire cacophony of the media, every body forgot that there were two other stake holders to the debate. First was  the “Honest Tax Paying Citizen” whose legitimate income and wealth were being eroded because of the corruption, black money and benami holding of properties all of which were threatened by the Aadhaar linking. Second was the business which adopted the use of Aadhaar for e-KYC and real time authentication of electronic documents through e-Sign. These stake holders were not impleaded into the arguments.

The Supreme Court bench which heard the arguments should have realized at some point of time that there was a possibility of them taking a decision which could hurt the interest of these stake holders and their interests were not being represented either by the petitioners who were Anti Modi and the Government which was Anti-black money, and voluntarily called in the other stake holders to explain their view points.

Today we are debating the consequences of one interpretation of the judgement from the petitioner’s side which strongly believes that the judgement bans the use of Aadhaar in any form by the private sector and severely restricts the use even in the Government sector.

The Government may defend its position by drafting suitable law to protect it’s interests but the private sector and the citizens may not be able to voice their opinion adequately.

However the PDPA 2018 (Personal data protection act 2018) which is in draft stage with the Parliament presents an opportunity for these stake holders to express their thoughts either through the public comments to be submitted before 10th October 2018 or through the MPs during the Parliamentary discussions.

This series of articles are aimed at stimulating the thoughts of interested persons so that they donot lose this opportunity.

The Srikrishna Committee made a detailed suggestion on changes to be made to Aadhaar though they were not included in the PDPA2018 draft. Now is the time to take a look at these recommendations and read it along with the Supreme Court judgement and incorporate it in the draft PDPA 2018.

Naavi.org therefore focusses in these discussions only on Aadhaar related discussions. Other than this, Naavi has only a few suggestions for amendment such as

a) “Making Criminal Offences Bailable”,

b) “Removing the Caste from the definition of sensitive personal information” ,

c) “Clarifying that the basic purpose of the Act is to protect the Privacy of Indian Citizens from Privacy infringement through insecure data processing either in India or elsewhere”,

d) “Clarifying that the jurisdiction of any foreign law on data protection shall be exercised only through the Data Protection Authority in India”

I am not going into the details of the above now and go directly into the Aadhaar related discussions which is the need of the hour.

For the purpose of this discussion, I am ignoring the part of the judgement attributed to the dissenting judge (D Y Chandrachud) contained in pages 568 to 1048 of the judgement. The judgement of the other four judges is recorded in two parts, the first part between Pages 1-567 (Dipak Misra,A.K.Sikri , A.M.Khanwilkar and the second part between 1049-1448 (Ashok Bushan). Even within the two parts of the majority judgement, I am focussing on

a) Pages 540 to 567 containing the 9  Issues discussed and Answers provided by the first three judges

b) Pages 1442 to 1448 containing the 18 conclusions listed by the Judge

This reduces our span of reading from 1448 pages to 35 pages. But this is the relevant portion of the judgement. In writing any judgement, the judges do quote what the petitioner has said, what the respondent has argued, what another judge has said in a different judgement, what did he consider relevant etc. These discussions are important for academicians to understand why a Judge came to a specific conclusion  but the operative part of the judgement has to be taken only from the “order”, “Summary” or “Conclusion”.

If there is any difference between what is expressed as a firm view of the judge in the body of the judgement and in the conclusions part, it could be due to the judge consciously taking the stand as given in the conclusions.

Even if it is a drafting error the erroneous order stands unless clarified separately. We may recall that a High Court Judge in Karnataka made a totalling error in a judgement and declared that (late) J Jayalalitha was not guilty of corrupt practices and this arithmetic error had to be challenged in Supreme Court as an “Appeal” which was kept pending until the lucky accused passed away.

We therefore continue our discussions in the next article with a discussion of the 35 pages relevant for our discussion.

Naavi

Disclaimer: The views expressed here and elsewhere on this site are the personal views of Naavi and not the views of any organization or group that he may be associated with.