By Shrey Nautiyal, Executive Editor
It is often stated that a strong and independent judiciary is a reflection of the state of affairs in the country. We as a nation have traversed from the dark times of the Emergency period, which choked the independence of the judiciary, to the judicial activism shown by the Apex court in recent times. Justice Krishna Iyer played a leading role in this initiative of the Apex Judiciary. Thus, the judiciary has not only been successful in solving legal tussles between individuals, but it has also played a role in the progressive transformation of the society. However, judgments are not always unanimous, and there are dissents delivered by judges who are a part of the Bench presiding over a particular case. There have been instances in the past, cemented in the golden history of the judiciary,whereby few noble and courageousmen had the tenacity and integrity to voice their dissent against anunanimous opinion, despite the over-burgeoning pressure on them to conform with the majority, and bow down to the pressure of the ruling Government.This paper attempts to analyze the growing importance of judicial dissent, in wake of the KS Puttasawamy judgment[i](“Aadhar Judgment”)
The dissenting judicial opinion has been taken for granted as a feature of the common law judiciary.[ii]The U.S.A., much like India, has witnessed stalwarts like Holmes and Cardozo delivering powerful dissenting opinions. The peril in Australian courts to conform and collaborate in single judgments (unanimous opinion)wasdiscussed by Justice Heydon[iii]; however, this was met by harsh criticism by other judges of the Australian High Court.[iv]The erudite warriors of rule of law, Justice Ali Fazal Ali, Justice HR Khanna, and JusticeSubba Rao are no longer there with us, but their dissents are celebrated and frequently used by the judiciary even today. However, the trend of the decreasing number of dissents has plagued the Indian judiciary today. Justice Chandrachud, in the AadharJudgment took the road less travelled leading to a 4:1 verdict in favor of upholding the constitutionality of the Aadhar scheme.Justices A.K.Sikri, D.Y.Chandrachud and Ashok Bhushan read their own judgments, while Justice A.K.Sikri penned his judgment on behalf of Justice Dipak Mishra and Justice Khanwilkar.
The dissent starts with an introduction of the interface between technology and governance, highlighting that Aadhar being the world’s largest project “needs to be scrutinized carefully to assess its compliance with human rights.”[v]Next, the submission regarding wrongfully passing the Aadhar bill has been dealt with.The judgment then proceeds to analyze the Puttaswamyprinciples (Right to Privacy Judgment) in light of the Aadhar scheme.A primary contention is that Aadharviolates the right to privacy of individuals, which is further tested on the touchstone of legitimate aim of the State and the proportionality of the intended scheme. A thorough analysis of the Aadhar framework along with various facets and contours of “biometric schemes” have been elaborated upon. Unlike the majority judgment, which starts with a WhatsApp forward message,“unique is better than the best”, JusticeChandrachud hasnot fallen trap to the assumption that Aadhar is an infallible scheme, and cannot be replaced by any other method for identification. Rather, he traces down the demerits of the biometric system.
Passing the Aadhar Act as a Money Bill
The Majority judgment inexplicably finds no legal issue in passing the Aadharbill as money bill. However, a plain reading of Article 110 (1)of the Constitution makes it clear that for a bill to be a money bill, it must contain only the “provisions dealing with every or any one of the matters set out in sub-clauses (a) to (g) of clause 1 of Article 110.” The dissent was correct in picking up on this point; as Section 7 of theAadhaar Act only provides proof of Aadhaar number as a necessary “condition to avail subsidies, benefits and services, for which the expenditure is borne from the Consolidated Fund of India.”[vi]Moreover, he correctly pointed out that the doctrine of pith and substance is used for determining the legislative competence of legislation, and it cannot be used to assess whether a bill is a money bill or not. Thus, as the Aadhar bill is not covered within the ambit of Article 110,it was held to be unconstitutional in the dissenting opinion.
Aadhar Scheme and violation of Article 21 of the Constitution
While discussing the various contours of the intersection of biometrics and privacy, the dissent mainly deals with how there have been worrying instances in the pastof privacy of individuals being compromised due to the biometric scheme.“The adoption of biometric technologies in developing countries in particular poses unique challenges since the implementation of new technologies in these countries is rarely preceded by the enactment of robust legal frameworks.”[vii]Other concerns rightly addressed in the dissent were – the risk of data profiling of individuals and the diminishing of anonymity of individuals (as regards those individuals who wish to keep their identity anonymous, and make it known in limited manner).
Judging the Aadhar scheme on the touchstone of twin tests – legitimate state aim and proportionality, the scheme was held to have a legitimate state aim.It was stated that“the mandate of Section 7 is founded on a legitimate state interest.”[viii]The reasoning behind this was the fact that the State aims to duly keep an account of its resources which are aimed at aiding the people who are “at the foot of the socio-economic ladder.”By undertaking an exhaustive comparative analysis of the proportionality test, the dissent opinion rightly addresses the need to balance the rights of an individual, and those of the community. The primary issues highlighted against the Aadhar scheme are – risks of data profiling, mass surveillance, and the rendering of individual as non-existent if the individual doesnot have an Aadhaar number.[ix]Furthermore, there is no grievance redressal body which would monitor and resolve violations of the provisions of the Aadhar scheme.
The Aadhar scheme fails the test of proportionality as the legitimate aim of the State (i.e. target of subsidies and services) can be fulfilled by adopting less intrusive measures as opposed to the mandatory enforcement of the Aadhaar.[x]The State’s claim is further diminished by the fact that it has been unable to show that no other method “other than biometric identification can serve this purpose”[xi]the biometric identification method being excessively intrusive of every individual’s right to privacy. Therefore, Justice Chandrachud rightfully and valiantly held that the Aadhar scheme in its present state is ultra vires the Constitution, as it is violation of Article 21 of the Constitution.
Even though the Aadhar scheme was held to be constitutional by the majority judgment, the dissent by Justice Chandrachud appeals to a distant future, in which there will be a similar challenge.It is then that the lasting impact of this dissent will be realized. However, the dissent is not only a guide for the future, but also a seminal work which is to be analyzed in the current milieu as it evaluates the importance of data protection and various facets of privacy, and in particular, informational privacy. Therefore, the instant dissent can be described by the classic quote ofCharles Evans Hughes, Chief Justice in the 1930sas:
“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.”
[i]K.S. Puttasawamy v. Union of India (2018) 1 SCC 809.
[ii] John Alder, ‘Dissents in Courts of Last Resort: Tragic Choices?’ (2000) 20 Oxford Journal of Legal Studies 221.
[iii] Former Judge of the Australian High Court said this while delivering the lecture, published in the Law Quarterly Review under the title ‘Threats to Judicial Independence: The Enemy Within’.
[iv] Joe McIntyre, In Defence Of Judicial Assent, 37 Adelaide Law Review (2016) pg 432.
[v]Id Pag 11, Para 10.
[vi]Id Pg 158, Para 103
[vii]Id Para 121.
[viii]Id Pg 257, para 187.
[ix]IdPg 341, para 247.
[x]Id Pg 475.
[xi]Id Pg 343, para 248.