AUGUST 22, 2015

A Legal Vacuum
The Supreme Court has failed to protect citizens from government illegality on Aadhaar.

he Supreme Courts interim order of 11 August 2015 in

Justice (Retd) K S Puttaswamy vs Union of India (Writ Petition
(Civil) 494 of 2012), referring the question of the width of
the right to privacy in India to a Constitution Bench and issuing
directions on the use of the Unique Identification Number
(Aadhaar number), is a travesty. Three years after the first
legal challenges were filed against the Aadhaar number, we are
no wiser as to the legality of a scheme which is not based on law
made by Parliament and against which serious allegations of
breach of privacy are being levelled.
A government agency acting in a legal vacuum is the antithesis
of the rule of law. Citizens must know their legal rights and
duties, the procedures to be followed, and the remedies they
can avail of against any wrongful action of such agencies. In the
context of the Unique Identification Authority of India (UIDAI),
this most basic tenet of the rule of law has been abandoned by
successive governments.
Five years after enrolments were begun by the UIDAI, there
is still no legal framework on the basis of which the biometric
data is being collected and Aadhaar numbers being issued.
The National Identification Authority of India Bill, 2009 was
shredded by the Parliamentary Standing Committee for,
among other things, the glaring weaknesses in the framework
to protect the privacy rights of individuals. It is unclear if any
changes are being made to the bill subsequent to the Report of
the Parliamentary Standing Committee but the UIDAI functions
nonetheless. Whatever be the benefits of granting unique biometric identification (for government and citizens alike), they
are being eroded by the manner in which it has been operationalised outside the purview of law.
This is where courts in a constitutional democracy such as
India are supposed to step in. Constitutional courts are supposed
to check unlawful action by the government, and the Supreme
Court has, thus far, failed to do so.
The Supreme Courts first significant order in this case, on
23 July 2013, was confusing and contradictory, leaving much
scope for doubt as to whether an authority could make the
Aadhaar number mandatory for availing a service or a benefit.
Although the stand of the central government and the UIDAI
continues to be that obtaining an Aadhaar number is voluntary,
there is a clear divergence between the stand taken in the

Economic & Political Weekly

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AUGUST 22, 2015

vol l no 34

Court and the actual demands by government agencies on the

ground. For instance, the Aadhaar number was made mandatory by the Union Ministry of Minority Affairs for students
from minority communities who wished to avail government
scholarships. It was only a steep drop in the number of students
availing the scholarships that prompted the ministry to make
it voluntary.
The earlier interim order of the Supreme Court, it would
seem, far from restraining the use of the Aadhaar number by
the government has, in fact, come to be seen as a green signal
for expanding its use. This forced the Court to reiterate its
direction in an order on 25 March 2014 in a different case filed
by the UIDAI against the direction of the Bombay High Court
asking it to provide biometric details to the Central Bureau of
Investigation in an ongoing case. That nothing much changed
is evident from the interim order of 16 March 2015 where the
Court again asked the central and state governments to
adhere to its earlier orders.
The latest interim order of the Supreme Court is yet another
attempt to ensure that the Aadhaar number is not made mandatory by stealth. However, it muddies the water by allowing
the use of the Aadhaar number in the context of the public
distribution system (presumably to prevent leakage) and for
criminal investigations. It is also not clear what possible use
the biometric information could be put to in investigating
crimes since the UIDAI has itself repeatedly clarified that the
technology does not permit it to be used for database-matching
of fingerprints and biometric information. On the issue of the
use of Aadhaar numbers for criminal investigation, the Court
contradicts its own earlier order of 25 March 2015 but gives no
reasons as to why it has changed its mind.
The biggest failing of the Courts interim order however is its
own unenforceability. The only recourse that a citizen has
against a government agency violating the Supreme Courts order
is to approach the Supreme Court itself in Delhi with a contempt
petition, and hope for relief. This is simply out of the question
for all but a negligible proportion of the countrys population.
The likely effect will be that the use of the Aadhaar number,
uncontrolled by law and carried on with reckless disregard for
privacy concerns, will be expanded slowly but surely in defiance
of the Courts order.
7

EDITORIALS

While the Supreme Court will eventually decide the constitutional scope of the right to privacy in India in this case, it is entirely
possible that by then it will be presented with a fait accompli by the
governmentthat the scheme has gone on for too long and is
now too deeply embedded in the structure of governance that any

rollback in the interests of legality, privacy or constitutionalism

would be unwieldy and chaotic. If such a state of affairs comes
to pass, the blame must rest on the shoulders of the Supreme
Court for having failed to exercise its power to uphold the rule of
law and having allowed its authority to be eroded with impunity.

AUGUST 22, 2015

vol l no 34

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