How Justice Chandrachud’s Aadhaar Dissent Upholds the Spirit of the Indian Constitution

Identity is at the core of our existence. It is the premise on which we build our relationships. And consequently, our worlds.

India, a nation known for its plurality, is a place where one can be one thing and also many other things – deriving their identity through unique combinations and associations.

The Indian constitution, recognising this diversity as the true essence of our nation, not only allows but encourages us to assert our various identities – something that it also zealously swears to protect.

India has always been a space for people to discover their uniqueness through the process of living;  identity was never meant to reduce our flesh and blood selves to a rigid, computer generated 12-digit number (ahem Aadhaar).

Offended by the possible repercussions of Aadhaar, Justice Puttuswamy, then an octogenarian, filed a petition in the Supreme Court of India in 2012.

Six years hence Justice Puttuswamy’s petition has not only led us to a historic judgement on Aadhaar, but has also been the result of the second longest hearing in the Supreme Court’s history.

The SC has done its version of ‘best to strike a balance’ in the majority judgement.

Hopefully, now, through Aadhaar – by leveraging the power of technology – the government will do its best to make sure that the benefits of development actually reached the people who need, and deserve, it the most.

India, however, is also a country known for its heterodoxy.

Justice Chandrachud’s dissenting judgment – a tome in itself – is, therefore, an occasion for us to celebrate our 3,000-year-old history of revering dissent.

Justice Chandrachud’s judgment, by keeping the individual at the centre, has provided the crusaders of democracy with words that will be sung by in the times to come.

His dissenting judgement gives us the intellectual architecture to understand the fundamentals of our democracy – of how when it comes to certain inalienable rights, bargaining cannot be an option.

And the extraordinary impact of this lone dissenting voice, in the short span of time since the verdict came out, demonstrates that an individual voice that refuses to bend still matters. Burnished by the courage of its conviction, it matters, even in a minority of one.

Governments, however, are run on the arithmetic of assembling a majority. They are known for attempting to appear tenable by making hole-and-corner compromises, more so when the people at the helm have the ability to shift their premise to suit the latest opportunity that knocks at their doorstep.

In the run-up to the 2014 general elections, Arun Jaitley (then leader of opposition in the Rajya Sabha) had blogged on the issue of privacy: “Firstly, every citizen in India has a right to privacy… We are now entering the era of Aadhaar number…Will those who encroach upon the affairs of others be able to get access to bank accounts and other important details by breaking into the system? If this ever becomes possible the consequences would be far messier.”

In July 2015 – after a government where Jaitley is considered to be the ‘brain’ behind the actions, came to power –  Mukul Rohatgi, then Attorney General, argued against the reading of Article 21 in a manner that would elevate the right to privacy to the status of a fundamental right. “There is no fundamental right to privacy,” said Rohtagi, representing the government.

A nine-judge SC bench, by a unanimous verdict in the case of Justice K.S. Puttaswamy (Retd.) v. Union of India (2017), rejected the originalist interpretation of the ‘right to life’, holding the right to privacy as an extension of the right to live (with dignity), unequivocally declaring it to be a fundamental right.

The core of the message cannot be emphasised enough:

“To live is to live with dignity… Dignity is the core which unites the fundamental rights because the fundamental rights seek to achieve for each individual the dignity of existence. Privacy with its attendant values assures dignity to the individual and it is only when life can be enjoyed with dignity can liberty be of true substance… Hence, it would be an injustice both to the draftsmen of the constitution as well as to the document which they sanctified by constricting its interpretation to an originalist interpretation.”

It needs to be understood that well-established legal jurisprudence requires that even in cases where a “compelling interest” can be shown by the state to justify abridgement of certain rights, the policy needs to be the least restrictive possible option.

Even assuming that Aadhaar is needed for the state to clamp down on identity fraud and ensure the targeted delivery of welfare benefits, it still appears to be the most intrusive means of securing that end.

In this context, Justice Chandrachud observes: “One right cannot be taken away at the behest of the other. The State has failed to satisfy this Court that the targeted delivery of subsidies which animate the right to life entails a necessary sacrifice of the right to individual autonomy, data protection and dignity when both these rights are protected by the Constitution.”

Interestingly, Narendra Modi, then the BJP’s prime ministerial candidate on April 8, 2014 tweeted: “On Aadhar, neither the team that I met, nor PM could answer my Qs on security threat that it can pose. There is no vision, only political gimmick.”

Walter Kirn’s words have never seemed more appropriate: “Everyone loves a witch hunt as long as it’s someone else’s witch being hunted.”

Jaitley introduced the Aadhar Bill in LokSabha on March 3, 2016.

The preamble of the bill, having as its goal, among other things, “to provide …good governance…targeted delivery of services,” mentioned that to meet the purposes of the bill, the expenditure shall be incurred from the ‘Consolidated Fund of India’.

This innocuous looking phrase was to have serious repercussions. For starters, it conferred on the government the power to introduce the Bill as a money bill. A money bill is basically a bill which can only be introduced in the Lok Sabha; and while the Rajya Sabha can suggest amendments thereto, it is the Lok Sabha’s prerogative to accept or reject them.

Jaitley’s party had a majority in the Lok Sabha, but the Rajya Sabha’s composition wasn’t as obliging. So, to him, the voice of the Rajya Sabha, of which he is himself a member, didn’t matter.

Justice Chandrachud’s observations are instructive in this regard. Passing the Aadhaar Act off as a money bill and circuventing the Rajya Sabha’s approval prompted him to call the move a “fraud on the Constitution.”

“Differences with another constitutional institution,” says the judgement, “cannot be resolved by the simple expedient of ignoring it. It may be politically expedient to do so. But it is constitutionally impermissible. This debasement of a democratic institution cannot be allowed to pass. Institutions are crucial to democracy. Debasing them can only cause a peril to democratic structures.”

Our constitution places the person at its centre. And the dignity of the person is a constitutional value and goal. Imposing a compulsory mode of identification on the citizenry as the only barter for rights he is lawfully entitled to, becomes problematic.

What becomes even more problematic is the fact of a 12-digit number determining an individual’s self-actualisation, taking us as far apart from the Lockean ideal of a “politically free man in a minimally regulated society” as is anyone’s guess.

What Justice Chandrachud’s lone voice does, is take a stand against the refusal of the State to recognise an individual except on the basis of a non-consensual agreement to subject oneself to Aadhaar.

And while it may be only a single voice in this judgment, this noteworthy remark by Justice Charles Hughes offers some solace: “A dissent in a court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day when a later decision may possibly correct the error into which the dissenting justice believes the court to have been betrayed.”

The range of Justice Chandrachud’s reason has touched the hearts of the Indian people. “A defeated argument,” in the words of Amartya Sen, “that refuses to be obliterated can remain very alive.” Justice Chandrachud has delivered a judgement for the ages to come.

Chandan Karmhe is a chartered accountant and an alumnus of IIM-Ahmedabad.

Featured image credit: Youtube