Introduction
“It is better to be unique than to be the best. Because, being the best makes you the number one, but being unique makes you the only one” [i] was quoted by the Supreme Court of India in while pronouncing the decision of the Aadhaar case by a five-judge Constitution bench headed by former Chief Justice of India, Dipak Misra.[ii]
Aadhaar is a unique identity number of 12 digits which can be procured willingly and voluntarily by Indian residents. The concept of the same is based on biometric and demographic data. The said information is secured and compiled by the Unique Identification Authority of India. The UIDAI was set up in 2009, January. It is a statutory authority administered by the Ministry of Electronics and Information Technology. The ministry follows the provisions of the Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act that was passed on 11th May, 2016.[iii] Paul Romer, the World Bank’s Chief Economist, describes Aadhaar as “the most sophisticated ID programme in the world”.[iv]
Since the very inception of the idea of Aadhaar, it has been the child of a lot of controversies, debates and deliberations by the general public as well as the courts of the nation. In January 2017, the five-judge Constitutional bench of the apex Court of the country presented its verdict on the provisional relief desired by petitions to lengthen the closing date, making Aadhaar compulsory for everything be it a bank account or mobile services. The concluding hearing started on 17th January 2018. In September 2018, the Supreme Court maintained the legitimacy of the Aadhaar system. In the said judgement of September 2018, the apex court of the country however postulated that the Aadhaar card is not compulsory to start bank accounts, obtain a mobile number, or be it taking admission to a school.[v]
Legislation
The Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016 provides a legal support to the Aadhaar unique identification number project. It was a money bill that came into force in September, 2016. The basic aim of the said legislation was to provide legal backing to the Aadhaar unique identification number project taken up by the government to ensure the provision of subsidies, transparency and in identification to those individuals residing in India.
The legislation consists of 8 chapters. Most of the Act has been borrowed from the National Identification Authority of India Bill, 2010. Though there have been certain differenced made, the removal of the three member committee called the Rajeev Committee has been a notable change. Talking about the differences, the Aadhaar Act has a new provision of requesting an agency/person to ask for information other than the general information, which pertains to be the person’s identity.
The Preliminary chapter gives the definitions of various terms that are integral to the Legislation, for example, biometric, demographic information etc. Titled ‘enrolment’, chapter 2 answers questions like how can and individual who is a resident, obtain the Aadhaar card. Chapter 3 discusses various important clauses which state that Aadhaar is not a proof of the citizenship or domicile. It also talks about the restrictions and rules of sharing the information of the residents. It is titled, ‘Authentication’.[vi]
The Chapter 4 talks about the powers and Function of UIDAI and is titled the same. The Chapter 5 deliberates upon the Grants, accounts, audit and Annual Report and other rules related to the revenues and expenditures. Chapter 6 promises to secure the identity and the information and authentication records. This chapter is important and pertinent in the eyes of privacy and is titled, ‘Protection of Information’. Chapter 7 discusses the Offences and Penalties that can be put on people misusing or impersonating the identity of an individual. Chapter 8 discusses miscellaneous provision for example, that the central government may supersede UIDAI for a period up to 6 months if it fails to perform its duties or public emergency etc.[vii]
Thus, the legislation had invited a lot of polarising opinions. Many petitions were also filed invoking the infringement of right to privacy etc. All such claims have been settled by the apex court of the country.
Justice Sikri held that the Aadhaar legislation is not infringing of the right to privacy. This is because it successfully passes the three-fold test recognised in the landmark privacy judgment of Puttaswamy. He clarified that the standard of review to test privacy infringements by a law is the “just, fair and reasonableness standard (three-fold Puttaswamy test) and not the strict scrutiny test. The three-fold Puttaswamy test states that in order for legislation to violate the right to privacy, it must fail the following: legality, which postulates the existence of law; need, defined in terms of a legitimate state aim; proportionality, which ensures a rational nexus between the objects and the means adopted to achieve them.”[viii]
The Privacy Debate
It had been highly debated if the bill should have been passed as the issue of right to privacy was still in the courts of the country. It has been a long standing debate in the courts of the country as to whether the right to privacy flows from the right to life and personal liberty or not.
A Public Interest Litigation was filed by a former army officer, Mathew Thomas. He appealed that the government in question, was disregarding and overlooking the orders of the past. Despite the fact that the project was unconstitutional, the government was pushing ahead with the project. It was allowing the profiling of the citizens which was a clear threat to their right to privacy.
Soon after, the apex Court of India ordered and guided the government to extensively broadcast and announce in print and electronic media that – Aadhaar was not compulsory for any welfare scheme of the government. The Supreme Court also raised the petitions appealing that Aadhaar was unconstitutional, to a Constitutional Bench.
A landmark judgement which answered various questions pertaining to whether the right to privacy is a part of the constitution of India and under the Article 21, hence a fundamental right is K.S. Puttaswamy V. Union of India. The historic judgement, over ruled various crucial judgements that were passed in the past. ‘The judgement held that the right to privacy is an implied and intrinsic right under the right to life and personal liberty. It is part of the protected rights under part III of the constitution, specifically, Article 21’.[ix]
In the judgement, Justice Sikri wrote that the State acquires the negligible and minimum probable expanse of data, which is demographic and biometric, from Aadhaar holders. Additionally, it states that, there are an adequate amount of safety measures in place to safeguard the data of Aadhaar holders. There have been various ways adopted to do so, like encryption and time limits on data storage. He, in the end, said that the structural design of Aadhaar in addition to the requirements of the Aadhaar Act is certainly not advantageous to create a surveillance State.
He completely relied on Dr. Ajay Bhushan’s, former CEO of UIDAI, power-point presentation to emphasize the following points which said that the registration process required negligible gathering of biometric data and that the material gathered remains in a storage tower.[x]
The five-judge constitutional bench of the Supreme Court welcomed numerous cases concerning to the legitimacy of Aadhaar on innumerable grounds. Some of the main concerns were privacy, surveillance, and exclusion from welfare benefits. In a majority judgement, the Supreme Court upheld the use of Aadhaar in September 2018.[xi]
Thus, as the Supreme Court believes, the legislation does not violate the right to privacy (under Article 21) or any other fundamental right guaranteed by the Constitution of India.
Legislative Supremacy
Legislative Supremacy is also known as parliamentary supremacy or parliamentary sovereignty. It exists in a few parliamentary democracies where the decision-making section derives its democratic legitimacy from its capability to direct the confidence of the legislature, especially a parliament and is also said to be responsible to that parliament.[xii]
The concept explains that the legislative body has unqualified and complete sovereignty. It means that the legislative body is superlative as compared to all the rest of the government bodies including executive or judicial institutions. It also holds that the legislative body may change or repeal any previous legislation and so it is not bound by written law (in some cases, even a constitution) or by precedent.[xiii]
The Constitution of India, however, embraced and implemented the concepts as that followed in Britain in talking about its Legislature. The Indian Parliament, yet, does not have legislative supremacy or a sovereign legislature resembling the British Parliament. It is impertinent to see that the legislative functions in the interior of the boundaries of a written Constitution which sets up a federal polity and the apex Court authorised with the powerful concept of judicial review.
In some countries other too, like India, separation of powers is seen as a hindrance in the way of establishing legislative supremacy. It restricts the scope of the legislation to simple law making. Judicial review is also one of the major roadblocks in the way of establishing a legislative supremacy as they declare the laws made by legislature invalid, according to the basic structure of the constitution.[xiv]
In India, the Constitution is said to be superior in nature. It contains concepts like judicial review which keep in check the parliamentary supremacy.[xv] However, it is important to note that the parliament itself has the power to amend the constitution but it is fundamental to observe that the amendments are subject to the basic structure of the Constitution itself. Thus, in spite of the legislative supremacy, the Constitution of the country serves as a check on the ultimate power of the Parliament that is the legislature of the country.
A.V. Dicey
Albert Venn Dicey was a British jurist and constitutional theorist who believed in Whiggism. It is a kind of political philosophy that draws its roots from the Parliamentarian faction in the Wars of Three Kingdoms, also known as British Civil Wars, which was a series of conflict between Wales, Ireland and Scotland between 1839 and 16551.[xvi] Whigs had their belief in the supremacy of the Parliament rather than the powers of the King (now, executive) and they antithetical to the Roman Catholic on the throne.[xvii]
Dicey was extremely interested and accepting to Jeremy Bentham’s philosophy and ideology of ‘individualist liberalism’ and embraced the development of the very franchise in the year 1867. [xviii] He was associated and allied with the “University Liberals”. This was an assembly of individuals who composed the Essays on Reform. Dicey was not embarrassed to be considered and categorized as a Radical.[xix] Dicey held that “personal liberty is the basis of national welfare. He treated Parliamentary sovereignty as the central premise of the British constitution”[xx].
Dicey still is popularly known as the author of the prominent – Introduction to the Study of the Law of the Constitution (1885). The philosophies and ideologies of the said work of Dicey are well thought out and have been found to be a part of the uncodified British constitution. He soon became Vinerian Professor of English Law at the Oxford University. He was a preeminent and well known constitutional scholar of his times. He propagated the expression “rule of law”, even though its usage can be traced back to the 17th century.[xxi]He interpreted and recognised that the freedom which was appreciated and cherished by the British subjects was solely and conditional and reliant on the essence of sovereignty of Parliament. Not only that, it was also dependent on the unbiased and fair mindedness of the courts. These very courts had to be free from intrusion and tampering of the government and the supremacy of the common law.[xxii]
A.V. Dicey says that, “Parliament means, in the mouth of a lawyer (though the word has often a different sense in conversation) the King, the House of Lords, and the House of Commons: these three bodies acting together may be aptly described as the “King in Parliament”, and constitute Parliament. The principle of Parliamentary sovereignty means neither more nor less than this, namely that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever: and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament.”[xxiii]
Aadhaar and Legislative Supremacy – Critical Thought
This act of the judiciary reviewing and catering to all the petitions regarding the Aadhaar Legislation passed by the parliament shows that in the country, the concept of legislative supremacy cannot be misused by the representatives in the parliament. On paper, this is exactly what an ideal concept of judicial review is envisaged but the real question is if the judiciary is completely independent of the views of any political party in the parliament. If the Supreme court, the judges and the judiciary, being an independent organ, do not intermingle or serve the interest of the ruling party at any instance.
Various controversies have been seen in the past regarding the appointment of Chief Justice of India. One comes across a lot of floating rumours of how the process of choosing the Chief Justice could be influenced in favour of the party in majority in the parliament. While the constitution and the independence of all the three organs, which is the essence of our democracy, keep a check and balance on each other and function completely independently, it is important to note the real life implications of the same. It is important to question whether the independent opinion of the judiciary still is concerned with providing justice to the people or over time, has been corrupt by the function of the political entities in the country.
Not taking away the fact that the Supreme Court, specifically in the last year has given landmark and historic judgements for the amelioration of the nation as a whole. It has proved that the Constitution, laws and rights of the citizens are at a pedestal and are valued in the most special manner, as possible. Still, the question arises as to the concept of ‘law as it is’ and how it ‘is ought to be’. The concept of natural and positive law cannot be ignored in the discussion of the judiciary. Over time, it has been seen that a lot of laws have been interpreted in manner, favourable and convenient to those in power. Today, with the citizenship laws being changed and Legislation enjoying absolute power due to majority, it is important to question the essence of natural law. There has to be some restraint on the positivist and realist school of law. This is indispensable in a democracy as certain moral codes have to be kept in mind for the minorities’ co- existing with the majority which explain why constitutional morality must be upheld regardless of the laws made.
Thus, the law should be studied more than just mere provisions as its essence lies in the practical applicability of the same.
[i] K.S. Puttaswamy V. Union of India, (2018) 1 S.C.C. 809 (India).
[ii] Aadhaar means unique, it’s better to be unique than the best : Supreme Court, THE ECONOMIC TIMES, http://www.economictimes.indiatimes.com.
[iii] About UIDAI, Unique Identification Authority of India (Government of India), https://uidai.gov.in/about-uidai.html
[v] K.S. Puttaswamy V. Union of India, (2018) 1 S.C.C. 809 (India).
[vi] Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016
[vii] Aadhaar (Targeted Delivery of Financial and other Subsidies, benefits and services) Act, 2016
[viii] K.S. Puttaswamy V. Union of India, (2018) 1 S.C.C. 809 (India).
[ix] K.S. Puttaswamy and Anr V. Union of India, (2018) 1 S.C.C. 809 (India).
[x] K.S. Puttaswamy and Anr V. Union of India, (2018) 1 S.C.C. 809 (India).
[xi] K.S. Puttaswamy and Anr V. Union of India, (2018) 1 S.C.C. 809 (India).
[xii] Martin, Lanny W., and Randolph T. Stevenson. “Government Formation in Parliamentary Democracies.” American Journal of Political Science, pp. 33–50, http://www.jstor.org/stable/2669358.
[xiii] Allan, T. R. S. “Legislative Supremacy and Legislative Intention: Interpretation, Meaning, and Authority”, the Cambridge Law Journal, pp. 685–711, http://www.jstor.org/stable/4509144.
[xiv] Sinnott-Armstrong, Walter, “Weak and Strong Judicial Review”, LAW AND PHILOSOPHY, pp. 381–392., http://www.jstor.org/stable/3505113.
[xv] K.S. Puttaswamy and Anr V. Union of India, (2018) 1 S.C.C. 809 (India).
[xvi] Womersley, David, Paddy Bullard, Abigail Williams, Cultures of Whiggism: New Essays on English Literature and Culture in the Long Eighteenth Century, 2005, University of Delaware Press.
[xvii] Goldie, Mark. “The Roots of True Whiggism 1688–94”, HISTORY OF POLITICAL THOUGHT, 1980, pp. 195–236, http://www.jstor.org/stable/26211778.
[xviii] Robert Saunders, Democracy and the Vote in British Politics, 1848–1867: The Making of the Second Reform Act, ROUTLEDGE, p. 161, 2016.
[xix] Julia Stapleton, Political Intellectuals and Public Identities in Britain Since 1850, MANCHESTER UNIVERSITY PRESS, p. 27, (2001).
[xx] Rivka Weill, “Dicey Was Not Diceyan”, THE CAMBRIDGE LAW JOURNAL, pp. 474–493, 2003.
[xxi] Lisi, Francisco L. “PLATO AND THE RULE OF LAW”, MÉTHEXIS, pp. 83–102, http://www.jstor.org/stable/43739105.
[xxii] Harvie, Christopher. “Ideology and Home Rule: James Bryce, A. V. Dicey and Ireland, 1880-1887”, THE ENGLISH HISTORICAL REVIEW, pp. 298–314, http://www.jstor.org/stable/566173.
[xxiii] A.V. Dicey, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION, 1885.
This article is written by Yashvi Jain of RGNUL, Patiala.
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