At the heart of the legal challenge against the Aadhaar Act was an argument that the Supreme Court must use the test of proportionality to strike down the legislation because the Aadhaar-style centralised authentication mechanism was not the ‘least intrusive’ option to identify individuals.
Instead of a centralised authentication mechanism, the petitioners argued for a system of smart cards that would store biometrics on individual cards, thereby enabling decentralised authentication.
Before proceeding to the court’s application of this test in the Aadhaar case, it may help to briefly recount the evolution of the proportionality standard of review and how it differs from existing standards of review.
The proportionality test evolved in Europe and while there are a few different variations of this test, the basic elements are as follows:
(a) Whether a legislative measure restricting a right has a legitimate goal;
(b) whether the legislation is a suitable means of furthering the legislative goal;
(c) Whether there is a less restrictive but equally effective means to achieve the same goal and
(d) Whether the restriction has a disproportionate impact on the rights of any particular stakeholder and whether the legislation achieves a balance between the rights of the different stakeholders.
The proportionality test has a certain appeal, especially in progressive circles, because it allows the judiciary to hold the state to higher standards of accountability and induces a certain degree of transparency in the decision-making process. This test however, also vests in the judiciary a significant power to second guess both the legislature and the government, especially at the stage of determining whether there is a less restrictive or intrusive route to achieve the stated legislative goal.
Historically, Indian courts have followed more conservative tests while judging constitutionality of legislation. For example, if reservations for certain sections of society are challenged as violating Article 14, the SC would examine if the criteria to identify the class of beneficiaries is well defined and having a rational nexus to the policy of the state, which policy is also required to be legitimate. When the court is judging the restrictions on free speech, it will examine whether the restrictions fall within the parameters laid down in Article 19(2). In neither case, is the court required to examine a less restrictive option.
The proportionality test in the Indian context
In the context of administrative law (i.e. review of decisions by unelected bureaucrats), the Supreme Court imported the proportionality analysis into Indian jurisprudence more than a decade ago. However as pointed out by Abhinav Chandrachud in an empirical study, it does not seem like Indian courts are applying this test in the European sense.
One of the important questions raised in the litigation against Aadhaar is whether the proportionality test could be applied to examine the constitutionality of parliamentary legislation. This was an important question because the Indian Supreme Court has been a relatively conservative institution which defers to the parliament in most cases of judicial review. But even this relatively conservative behavior of the court has provoked ferocious reactions from parliament, the worst being Schedule IX of the constitution which shields more than 250 state and central legislation (dealing with land reform and reservations mostly) from judicial review meaning that the court cannot examine whether these legislation are constitutional. This immunity was partially diluted by the Supreme Court in 2007 but Schedule IX is a constant reminder of the potential for a showdown between the parliament and the Supreme Court.
Given this historic tension between the Supreme Court and parliament, it was certainly interesting to see the former declare in the judgment last year by nine judges that proportionality could be grounds of judicial review of legislative action. Prior to the Puttaswamy decision, there had been only a few decisions like the case of Anuj Garg v Union of India where a smaller bench of the court adopted higher standards of judicial review while reviewing parliamentary legislation. The constitutional challenge against the Aadhaar Act was thus going to be the first major test case of the Supreme Court’s willingness and ability to use the proportionality doctrine as the basis of reviewing a parliamentary legislation.
Proportionality in the context of Aadhaar
The first two steps of the test were relatively easy for the government to argue because the judgment by the nine judges last year had already concluded that it was a legitimate aim of the state to collect and analyse information for the purpose of disbursing benefits and subsidies.
The challenge for the court, was the third prong of the test i.e. whether there was a less intrusive or restrictive mechanism for the state to achieve the same aim. Simply put, was it possible for the state to use a technological medium that would reduce the potential privacy violation of citizens.
For example, were smart cards a less intrusive mechanism to achieve the same aim as Aadhaar since it would prevent a centralised database of information – be it biometric information or authentication records? Without a centralised database, it was less possible for the state to profile citizens or so the argument went. Given the court’s history, this was setting the bar quite high.
The majority judgment
Of the three judgments, the majority opinion penned by Justice Sikri concluded in page 351 that there was no alternative to the Aadhaar system of authentication and that despite repeated queries, the petitioners themselves were not able to suggest any such method.
This appears to be a factually incorrect conclusion because Justice Sikri had recorded earlier, in page 321, that the state of Gujarat had argued that the petitioners who had suggested smart cards as an alternative had failed to establish that “smartcards are less intrusive than the Aadhaar card authentication process”.
It is quite stunning for the majority to claim that the petitioners did not even suggest an alternative to Aadhaar.
The concurring judgment
Justice Bhushan in his concurring judgment upholding the Aadhaar does mention that the petitioners argued that smart cards were less intrusive than the Aadhaar style of authentication. He however rejects this argument on the grounds that it is not within the realm of the court’s jurisdiction to second guess parliament on the best technological mode to conduct authentication. His conclusion in page 1,213 of the judgement is as follows:
At this juncture, we may also notice one submission raised by the petitioners that Aadhaar Act could have devised a less intrusive measure/means. It was suggested that for identity purpose, the Government could have devised issuance of a smart card, which may have contained a biometric information and retain it in the card itself, which would not have begged the question of sharing or transfer of the data.
We have to examine the Aadhaar Act as it exists. It is not the Court’s arena to enter into the issue as to debate on any alternative mechanism, which according to the petitioners would have been better. Framing a legislative policy and providing a mechanism for implementing the legislative policy is the legislative domain in which Court seldom trench.
While this conclusion may have been in line with the court’s traditional standard of review, it does not quite tie into Justice Bhushan’s analysis in page 1,174 that the the proportionality test requires the court to examine the “least intrusive means”.
- It is quite stunning for the majority to claim that the petitioners did not even suggest an alternative to Aadhaar.
In his dissent, Justice Chandrachud is categorical in his rejection of the government’s argument that the court lacked the institutional expertise to examine the least intrusive alternative to Aadhaar from a technological perspective.
In applying the proportionality test, the Court cannot mechanically defer to the States assertions. Especially given the intrusive nature of the Aadhaar scheme, such deference to the legislature is inappropriate. The State must discharge its burden by demonstrating that rights-infringing measures were necessary and proportionate to the goal sought to be achieved. (page 838)
So far so good. But his judgment falters at the very next prong on how exactly the court should assess the “least intrusive measure” when compared to the state’s offer of a centralised database such as Aadhaar. He does point to several possible problems with the Aadhaar system but appears to have not dealt with the smart card option as an alternative despite recording the fact that the State of Gujarat had countered the petitioner’s suggestion for smart cards (p. 622).
As a result, his conclusion that the Aadhaar Act fails the proportionality test does not really hold up.
Together, the three judgments reveal an alarmingly discordant Supreme Court. Hopefully these judgments serve as a note of caution on the challenges of importing the proportionality analysis into an already confused Indian jurisprudence on the standards of judicial review of parliamentary legislation. There is also the question of whether we want the Supreme Court to enjoy such immense powers over an elected body like the parliament.
Will the court’s second guessing of parliament provoke something worse than Schedule IX? Is it not better to hit the streets and hold the parliament accountable?
Prashant Reddy T. is an assistant professor at NALSAR University of Law, Hyderabad.