For the five judges of the Supreme Court hearing the Aadhaar case, it is a time for deep introspection. In the second half of January next year they will have to take a final call, one way or another, on whether invasion of privacy by the State is justified or not. The crux of the matter is crystal clear - should Aadhaar-linking be voluntary or mandatory?
Stripped of all the complex constitutional, legal, political and commercial aspects and implications of the case, the bare bones of the dilemma faced by the August Bench when hearing is resumed after the year-end winter vacation is – should 1.39 billion citizens of India be coerced into divulging their private and personal information and sharing it with government departments, state-run agencies and even private sector companies and service providers.
In other words, should Central and State governments, banks and insurance companies, mobile phone operators, educational institutions, airlines and hospitals be vested with the draconian power to take coercive action against any person who does not have Aadhaar verification and to deprive him or her of basic services and benefits?
This is the far-reaching, game-changing, mind-wrenching judgment that Justices Dipak Misra, Sikri, Khanwilkar, Chandrachud and Ashok Bhushan will have to deliver. It is an onerous task; and an awesome responsibility. It will alter the equation between citizenship and society, governance and commerce for generations to come.
And, moreover, it is irreversible. Once Aadhaar is made mandatory, it will be meaningless to declare it to be voluntary or optional through some future judicial review.
Scholarly works on jurisprudence have wrestled with such philosophical quandaries faced by judges in the past. Do judges stand aloof on distant heights, detaching themselves from the great tides and currents which engulf the rest of men?
Are judicial pronouncements expected to be based solely on the dry letter of the law, within the confines of perceived red lines indicated in the statute books, taking only symbolic cognizance of the spirit of the Constitution and mindful not to encroach on Executive territory? Will the cause of truth in the Aadhar case be served by treading cautiously and dreading the consequences of acting and adjudicating on behalf of posterity?
The apex court displayed no such inhibitions while delivering the courageous and correct judgment in the Right to Privacy case as recently as August 27 this year, and that too in a matter directly linked to the contentious Aadhaar debate.
It was not just a five-judge Bench that passed that historic verdict but a full nine-judge Bench that held that Right to Privacy was a Fundamental Right under the Constitution with these soul-liberating words - “The right to privacy is an intrinsic part of the Right to Life and Personal Liberty under Article 21 and is one of the Freedoms guaranteed under the Constitution.”
That sterling verdict went even further than mere tokenism – it affirmed that each individual citizen as a basic entity of the Constitution, it defined “privacy” in terms of “bodily integrity, informational self-determination, and decisional autonomy”, and it removed all ambiguity regarding the “narrow framework within which the State may impose limitations upon Privacy of the individual”.
Given these clear indicators to the vision, thought-process and courage of the Judges of the Supreme Court, there is reason to trust in the wisdom of the five who will sit in judgment on the Aadhaar case during the resumed hearings post-January 17.
The Interim Order passed on December 15, therefore, needs to be viewed as just that – a provisional working arrangement intended to tidy up some of the prevailing contradictions and confusion on the ground. It would be erroneous and unwarranted to interpret the extension of the government-imposed deadline date for compliance with Aadhaar norms till March 31, as a straw in the wind or a hint of the likely nature of the eventual judicial verdict in the case.
A closer evaluation of the legal arguments put forth by counsel on both sides of the matter before the Bench on Thursday and Friday underscores the point that it would be premature - and even unfair to the judges - to draw any conclusions, one way or another.
There was a galaxy of legal luminaries on both sides. Attorney General for India KK Venugopal appeared for the Union of India. Senior Advocates Aryama Sundaram and Rakesh Dwivedi appeared for Unique Identification Authority of India (UIDAI).
Representing the 20-odd petitioners was another battery of eminent advocates -- Gopal Subramanium, KTS Tulsi, Anand Grover, Shyam Divan, Sanjay Hegde, Meenakshi Arora, Sajan Poovayya, KV Viswanathan, Arvind Datar and Prashant Bhushan – all of whom argued against the Aadhaar scheme. Tulsi, Anand Grover, Prashant Bhushan made forceful points regarding the potentially draconian consequences of leakage of biometric data that the Aadhaar scheme requires citizens to part with.
The advocates for the petitioners termed the linking of the UIDAI number with bank accounts and mobile numbers as illegal and unconstitutional and strongly objected to the Central Board of Secondary Education (CBSE)'s sudden move to make it mandatory for students to appear for exams.
Shyam Divan contended that the government "cannot compel" citizens to link their Aadhaar with either bank accounts or mobile numbers. He referred to previous Orders passed since 2013 by several benches of the apex court to highlight his point that Aadhaar was "voluntary" and not "mandatory" and it was meant to be used in only a few welfare schemes like PDS, LPG, MGNREGA and Jan Dhan Yojna.
The Bench heard Divan remind the apex court that it had time and again made it clear that no person shall be deprived of any benefit, which otherwise would accrue to him, for want of Aadhaar, but these orders have been violated with impunity by the Centre which has come out with as many as 139 notifications making Aadhaar mandatory for almost everything, he said.
"The government went on a notification spree curtailing individual freedom and privacy despite interim orders from the Supreme Court that Aadhaar is voluntary" while continuing to assure the court that it will be a voluntary scheme, the senior advocate said. He further passionately argued against the shocking instances of notifications being issued to make Aadhaar mandatory even for HIV patients, CBSE, JEE, UGC scholarship and nursery admissions. He said these actions "diminished the majesty and authority" of the Supreme Court orders.
At this point the Chief Justice intervened and asked counsel to stick to the pleadings rather than to take recourse to emotional rhetoric. "You may have a point on constitutionality, legality. You have made a point that these circulars deprive sections of society dependant on social welfare. But all such material should be brought on record before us and the other side should be in the know," the CJI observed.
The Attorney General expressed his inability to speak on behalf of authorities like the Uttar Pradesh state government and University Grants Commission (UGC) as they are not parties in the present case and notices have not been issued on those interim applications.
Goapl Subramanium contended that the Aadhaar legislation was arbitrary and could not be allowed to negate the very basis of the apex court Orders that the scheme was voluntary.
Anand Grover underlined the issue of data safety and said some persons and companies involved with the scheme, were connected to US agencies like the FBI and the CIA and were also providing services to some Pakistani departments or authorities.
Having heard both sides attentively, the Court held that “Having due regard to the importance of the issues which have been raised in the case, which has led to the judgment of nine Judges of this Court on 24 August 2017, we are of the considered view that the resolution of the issues raised before the Court should proceed at the earliest, after the Court reassembles in January 2018. This will ensure clarity for citizens on the one hand and for the Union and the State governments and the instrumentalities on the other hand.”