Clear message from SC: No one has unquestioned power

Two judgments and two dramatically different understandings of what the Unique Identity project is doing to a people. Our constitutional history is replete with stirring examples of dissenting judgments teaching us how to think about an issue and taking us into the future that enhances our liberty and preserves our freedoms.

Interestingly the nine-judge, privacy judgment circled around one of these historic dissents; Justice Subha Rao in 1962 asserted the right to privacy for the people of the country when other colleagues hesitated to recognise such a right.

Both the judgments delivered on Wednesday reflect a time of change and transition. We are moving through a period when technology has entered our lives in myriad ways, and there is both excitement and fear about its possibilities. The fear is about the heightened potential of surveillance and state control over people’s lives and the slow destruction and more gradual erosion of liberties. If technology is to be tamed, and it is not to be our master but an instrument for fulfilment of our rights, then Justice DY Chandrachud’s dissent provides a credible basis. At this point when we say technology, we are talking about our personal information being out of our control and being used for profit by private corporations and a potential resource for the state to incorporate in its economy. Rights cannot give way to business gains and state control.

The majority has relied on continuity and not acknowledged the technological implications of social change. Technology is really being tested on us in this project, but for the majority it is about making room for the state to run a programme that it says is central to its governance model. So the real tragedy lies in the poor and the marginalised being told that in a balancing of rights the state requires them to give up the right to privacy so that they may be given food, work or shelter. The problem is that the poor need privacy across databases and time more than most. Sometimes burying the past or keeping it within one’s own counsel is the route to dignity. The majority completely misses this.

While the dissent recognises the design faults of the project, the majority sees them as implementation issues. But biometrics has been untested from the start and biometrics has been seen to fail for large number of people. The 99.7% rate of success of biometric authentication is hard to locate amidst UIDAI AB Pandey’s admission that for 6% of those who tried to authenticate with fingerprints and 8-10% who attempted to do this with iris, the authentication did not work even once. The Economic Survey 2016-17 cited figures as high as a 49% failure rate for Jharkhand. So where did the majority find its confidence that this is a system that works ? There is a touching faith in the state which informs the majority judgment which the dissent says is constitutionally unreliable. In the 567 pages of the majority judgment, surveillance — an abiding concern — is not even mystically present. Seeding multiple databases, giving the information to companies, the rise of projects such as the national intelligence grid which aims to become a pipeline for real time information of personal data of people, and the imposed idea of potential criminality on a whole population has not caused the majority any pause.

There is something to cheer about. Both the majority and the minority agree that the decision of the speaker to certify a money bill is subject to judicial review. What does this mean? This means that the court recognises that unquestioned power does not vest in anybody who derives their authority from the constitution.

Usha Ramanathan is an independent legal researcher.

The views expressed are personal

First Published: Sep 27, 2018 12:24 IST