Advocate Talks Continued Misuse of Aadhaar & Chandrachud’s Dissent

Prasanna S, who aided the petitioners on Aadhaar, says Aadhaar will continue to be misused despite the verdict delivered on 26 September, and explains how the verdict is a setback for the government. He also highlights the significance of Justice Chandrachud’s minority verdict.

What is the significance of Justice Chandrachud’s verdict?

Many of our celebrated dissents have later become good law. Justice Subba Rao’s judgment, in fact all of his dissents, have now been declared to be good law. So there is a good chance that Justice Chandrachud’s dissent will become good law in the fullness of time. And Justice Chandrachud’s judgment is wholly a dissent. It is still a judicial opinion and must guide government action in the future.

Section 7 of the Aadhaar Act mandates producing Aadhaar for services. Has it been read down according to you?

They noted the statement of the Attorney General that nobody will be denied benefits due to Aadhaar authentication failures because they conceded that in some measure there are problems with it. So once that has been established effectively, the regime has changed from Aadhaar being mandatory to being the primary mode of identification, but not the exclusive mode of identification. So, in some ways it is reading down of Section 7, if you see. You will definitely need to have an Aadhaar but if your authentication fails, that’s okay, you can use something else.

What is the impact of sidelining authentication for use of government services?

If I go with a Aadhar card that is taken from a nearby printer on a laminated sheet saying that my name is Prassana. If I call myself, Narayan Murthy or Nandan Nilekani –with my photo or maybe his photo. What can happen is that if the authentication fails, I’ll claim that the authentication may have failed, but my claim has not been defeated yet. So, they’ll record that, ‘See authentication has failed for Narayan Murthy but because we know that authentication failures exist, we will anyway need to give this to him based on another ID’.

Will private agencies be asked to delete Aadhaar data?

From my reading of the majority judgment, there is no clarity on the next steps. There is a judgment of Justice Chandrachud that says ‘this goes so therefore this consequence follows’. Justice Chandrachud’s verdict is a partial dissent. On the question of mobile linking and bank linking, both the majority and the minority agree with the final result. One of the judges says ‘this is the consequence, you delete the data’, I would read that as you should delete the data. There isn’t particularly a dissent from the majority on that point.

The verdict doesn’t call for awareness to be created amongst government officials. Comment?

I think they’ve left it to the government. Let’s see what the government will do about this. If their track record is anything to go by, there is going to be more confusion and more chaos.

On the future course of action on Aadhaar?

For legal strategy, it’s the early stages. If the Government of India reviews this judgment – believe me, they have enough grounds as they did not get what they wanted. The project was under challenge. Did the project come out unscathed? The answer is no. The Government of India asked the petitions be dismissed and with costs. Did they get what they wanted? No. So it is possible that the Government of India comes in review against this judgment, in which case, as petitioners, in all likelihood we will fight.