While it is true that the Verdict on the Constitutional validity of Aadhaar reads down the Aadhaar Act in several key areas, the overall effect is one of deep disappointment about the readiness of the Indian judiciary for the digital age. The judgment is rife with a lack of comprehension of the implications of crucial facts presented during the hearing.

The judgment is 4-1 with Justice Sikri penning down the majority judgment on behalf of himself, Chief Justice Mishra and Justice Khanwilkar. Justice Bhushan has penned his own judgment with minor differences while Justice Chandrachud has penned a crucially important dissenting judgment.

Initial observations:

The judges appear to have fallen for government propaganda

The main judgment has been penned by Justice Sikri on behalf of himself as well as Chief Justice and Justice Khanwilkar. After endless references and arguing during the hearing regarding Aadhaar being made mandatory for necessities, the judgment begins with this gem.

Its use is spreading like wildfire, which is the result of robust and aggressive campaigning done by the Government, governmental agencies and other such bodies.

The fact of it is that adoption of Aadhaar lagged till it started being linked with necessities. This is not a robust and aggressive campaign, it is coersion, and Justice Sikri himself had observed this during the hearings. This judgment penned by him strikes down Section 57 for private parties, making it possible for people to get bank accounts and mobile phones (among endless other things) without linking Aadhaar numbers.

And yet, the judgment pretends that the adoption of Aadhaar was about influence and not compulsion.

Things go downhill from here.

Accepting the Aadhaar Act being passed as a money bill

The Aadhaar Act being passed as a money bill essentially bypasses the Rajya Sabha in the process of lawmaking and undermines the robustness of law making. This paves the way for further laws that the government is unlikely to pass successfully being passed regardless. This may also pave the way for the government to pass further money bills that undermine this judgment itself in order to get around the few restrictions it does place on commercial interests.

The private sector is already making noises about a law allowing use, Rakesh Dwivedi hinted about as much on NDTV and our Finance Minister Arun Jaitley says the ban on private parties using Aadhaar data may be temporary and just needs legislative backing.

The interests of the poor don’t matter as usual

While most of the immediate concerns of the middle and upper classes got addressed – mainly iinking with banks and mobiles and etc and the privacy implications, none of these concerns actually caused loss of life or health to anyone. The poor have been deprived of their due rights in the form of rations, pensions and other medical/nutritional necessities. With Aadhaar for Welfare being upheld based on the thin con run by the government that no one will be denied their rights, the concerns of the most vulnerable people who have actually lost lives due to deprivation remain completely untouched by justice.

The Supreme Court appears to be parrotting the nonsense claimed by the government, including the fine print, where lack of Aadhaar will not cause deprivation but the government requires an enrolment ID – in effect, Aadhaar is mandatory and failure to authenticate Aadhaar will continue to create problems for these people.

Between those who need welfare and those who pay taxes, Aadhaar is mandatory for most of the population

Between the Supreme Court not striking down Section 7 and also upholding linking of Aadhaar and PAN, most Indians will mandatorily have to get an Aadhaar made, and the lip service to privacy and so on is exactly that. Lip service. For practical purposes, anyone who is poor enough to need state welfare and anyone rich enough to pay taxes are both required to have Aadhaar.

Children will not be required to have an Aadhaar and it can’t be made without parental consent and they can opt out on reaching majority, BUT, they too will need one for welfare and opting out as adults won’t help them much if they earn taxable income and require it for a PAN.

In effect, Aadhaar is mandatory.

Technological failures have been completely ignored.

Serious technological failures and design flaws resulting in scams, fake enrolments and other risks to individual and national security have been completely ignored.

Technology isn’t politics where if you repeat a lie often enough, it becomes the truth. Repeating a lie may influence public opinion, but it isn’t going to make an insecure system actually secure, and we see growing instances of the Aadhaar system having gaping holes.

This includes foreign nationals using Aadhaar to get valid Indian documents, cracked ECMP software making it possible for anyone, anywhere to generate an Aadhaar, several banking and other financial scams.

The Court wants illegal immigrants to not get an Aadhaar, but the judgment ignores the fact well established during the hearings that the UIDAI technology and process of enrolment or verification actually has no method to verify the identity of an Aadhaar holder and absolutely no means to distinguish real enrolments from fraudulent ones, let alone the enrolment of ineligible people.

Besides, if someone residing in India for six months can get an Aadhaar, how is the UIDAI going to know whether the person is an illegal immigrant or not? The judgment simply fails to understand the tech aspects and the limitations of Aadhaar.

The silver lining – Section 47 has beens truck down

Section 47 of the Aadhaar Act, which allowed only the UIDAI to file proceedings in the event of violations related with Aadhaar.

No court shall take cognizance of any offence punishable under this Act, save on a complaint made by the Authority or any officer or person authorised by it.

This has been struck down, allowing people the right to justice.

This, naturally opens the possibility for those wronged by Aadhaar related denial of their rights to approach courts for justice, including those denied food, pensions, medical care, fraud, identity theft and other crimes people have suffered due to Aadhaar.

While this judgment in itself does not correct the serious wrongs of Aadhaar, the striking down of Section 47 at least allows people the right to seek justice in a court of law in the future.

Section 57 has been struck down as far as the private players are concerned

This will be undermined by the “Aadhaar ecosystem” – too much private money is at play and there are already noises about drafting new laws to get around this. It doesn’t help that the money bill route to bypassing the Rajya Sabha appearst o have been legitimized by this judgment.

However, as things currently stand, private players can no longer legally authenticate Aadhaar data – which also raises questions about what happens to the various private bank offering enrolment and updation services as well as countless private operators conducting enrolments and updation in bank and post office premises (but aren’t government employees and run private businesses).

Requiring judicial orders to share individual data is a welcome step

Sadly, the judgment fails to grasp the magnitude of duplicated databases due to Aadhaar linking and the UIDAI refusing to give out information will only be a technicality with the data duplicated on SRDHs and other databases linked to Aadhaar numbers.

These are my initial thoughts. More will be clear in the coming days and on reading the entire judgment which is a whopping 1448 pages!

My gut feeling says that Justice Chandrachud’s dissenting judgment is going to become increasingly important with time.


Vidyut

Vidyut is a commentator on socio-political issues with a keen understanding of tech and policy. She has been observing and commenting on Aadhaar since 2010 from a perspective of human rights, democracy and technological robustness.

1 Comment

Dr Bhardwaj K.S. · September 27, 2018 at 5:07 am

Ram Ram Vidyut: 1Petition st Thanks For Writing In Bold Letters Which Made Me Easy To Read And Understand. Looks SC Was Under Pressure Otherwise It Will Never Have Accepted A Civil Bill Paased As Money Bill. It Is Really Undemocratic. Justice Chandarchud Has Shown The Window. The Petitioners Should Immediately File A Review Petition Before GOI Makes Any Mischief. Thanks.

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