Understanding the 1/5 Unconstitutionality of Aadhaar and What You Can Do About It Today

What is the difference between a monarchy and a democracy?

I am Tipu Sultan. I rule the kingdom of Mysore. I ensure that my kingdom flourishes. In order to ensure that, I will make certain rules. I will punish those who do not follow the rules. Welcome to Mysore.

We are the people of India. We will decide what happens in India. We will elect representatives among us to make rules for India. We will keep changing these representatives. We will ensure there is social, economic, and political justice; that there is freedom of thought, expression, belief, faith, and worship; that there is equality of status and opportunity among us; and we will promote among ourselves fraternity assuring the dignity of each of us and the unity and integrity of India.

Which of these places would you want to be born in? Mysore or India?

I was born in India. I was not born when India was in hundreds of pieces and ruled by different kings. Neither was I born when India was under the British emperor. I was born after Indians came together, said “enough is enough” and claimed India for themselves, and having drafted for themselves the Constitution of India, decided to live by it as a democracy where justice, liberty, equality, and fraternity will prevail. Thank goodness I was born in a democracy.

Here is a picture of the constituent assembly. Whatever they discussed while drafting the constitution is available on the Loksabha website. Reading through the constituent assembly debates is in my bucket list as well.

Anything more than incremental change is hard. Except during revolution. During revolution, change is the norm. India’s independence from Britain was a revolution. Because of our experience with monarchy, we chose democracy as our governing moedel. A strong constitution is fundamental to the survival of a democracy. We drafted a strong constitution taking inspiration from various strong democracies. We set that in stone. We set our democracy in stone.

The beautiful thing about principles is that well-thought principles rarely need to change. For example, Mahatma Gandhi made truth and non-violence his principles. He could live his entire life on those principles. It is principles that give rise to many of the organizations we see around us. When the principle dies down, the organization too. The way we operate, the rules we follow, the things we do, everything can change. But the principles won’t. Indian constitution defines the principles of our nation. Whatever happens in our country should be in line with the principles laid down in our constitution.

Think about it for a second. The constitution is the foundation of our democracy. If we do not uphold the constitution, we are destroying our democracy, we are giving up on all the principles that the constitution stands for. Hold that thought.

The constitution alone is not sufficient to run a country. Which is why the constitution allows for setting up of legislative, judiciary, and executive branches for the democratic government. Legislative to write laws. Judiciary to read laws. Executive to execute laws. (Like Unix file permissions). And there is clear power separation between the branches on who can do what.

The distinction between branches work well when everyone is doing just what they are supposed to. Law gets passed by legislature that from October 1 people should ride their vehicles on the right side of the road. Police fine or even arrest people who are riding on the left side on Gandhi Jayanthi. They are produced before the court and the court gives them the punishment prescribed in the act.

Things get murky when the constitution is involved or invoked, though. Vrinda Werkijal who was arrested on October 2nd, goes to the court and says “It is my constitutional right to ride on the road as I please. Rather than punishing me, you should strike down the law that says I can’t ride on the left side.” Then the court would be happy to point out to Werkijal that there is no constitutional right to ride on any side of the road and put Werkijal in jail.

But, imagine the law was about free speech. Say UP passes a law tomorrow that says people should not use the word “beef” in the state. Abhish Mathew could go to the court even before he gets arrested and argue that the law is against the fundamental right of freedom of speech and therefore should be struck down. Easy peasy.

Wish everything was so black and white. Many laws are huge. Huge in terms of the components in it. Take Aadhaar Act itself. It has 59 clauses spread over 8 chapters. And many of these are complicated compounded sentences with multiple sub-clauses. When an unconstitutionality claim on such a thing is claimed, it will indeed take months of litigation and thousands of human hours to decide on constitutionality.

In short, there is only one argument against aadhaar: it ensures surveillance while claiming to ensure welfare and does not even ensure welfare.

Let us imagine. What does it take to decide on this case? Even for a person who is not influenced by politics and not corrupt, it takes deep and philosophical understanding of:

• the constitution
• how surveillance damages democracy or how privacy is important in democracy
• the disproportionate power that entities with access to big data obtain
• the technology that is running behind aadhaar
• the reality of welfare delivery in our country

Unfortunately, superficial understanding of these won’t do. Someone with superficial understanding would say things like, “hmm, aadhaar will help catch terrorists”, “hmm, we can save money by removing fake accounts in the PDS”, “hmm, you don’t have to worry about surveillance if you have nothing to hide”.

But if you go read the critiques of aadhaar, you can hear deeper perspectives on how biometric authentication is probabilistic and how arbitrarily a threshold setting configured on a software can either declare you undeserving or deserving for your fundamental rights; on how design choices enabled illegitimate enrollment which has lead to ghosts and fakes in the database – the very thing you set out to weed out; on how democratic voices are stifled in a surveillance state; on why Rajya Sabha is indeed a part of the parliament; and so on.

Relevant section from Supreme Court judgement on Aadhaar’s constitutionality

So, why would someone feel like aadhaar is unconstitutional while others don’t? Why is it 1/5 unconstitutional? You know the answer, don’t you?

If you would like to spend more time crying over spilt milk, read from page 568 onwards of this PDF file.

What you must do now

As a citizen of India, it is in your own best interest to ensure that the democracy continues unharmed. The best way to do so is to elect representatives wisely. That is not an everyday choice though. But you do have a choice every day to engage with the government. For example, ministry of electronics and information technology has invited feedback on a draft personal data protection bill. The bill is riddled with issues. First, read analyses of it. Here are a few links:

Looking at loopholes in sections of the Bill pertaining to data ownership, RTI and more
Loopholes pertaining to empowerment of children, consent and surveillance State
India’s data protection draft ignores key next-generation rights

Then, write to the ministry with your comments.
Through Ministry directly
Through Maadhyam

Be a good citizen. Live in a strong democracy.