The Supreme Court has passed a series of landmark judgements in the last one week, prior to the retirement of CJI Dipak Misra. The judgements encapsulate the important controversies of the day and also expose the ironies of the populist thinking. The important judgements passed by the Court included the constitutionality of the Aadhar Act of 2016, the question prefacing the Ayodhya dispute, and, the question of quota in promotions for SC/ST categories. Other decisions were passed as well, but these stood out, due to the nature of sustained controversy they had courted.
The Aadhar Verdict:
One of the most significant verdicts passed by the Court pertained to the constitutionality and scope of Aadhar. At a time when privacy violations and misuse of personal information of people has become rampant around the world, forcing regions like EU to enact the world’s most stringent data protection laws, in India too, the debate has been gaining traction around Aadhar. Does the Aadhar mechanism violate a person’s right to privacy? In keeping with its 2017 judgement which declared the right to privacy as a fundamental right, in the present judgement too, the Court sought to address these concerns.
It has scrapped certain contentious sections of the Aadhar Act, 2016. Section 57, which empowered private companies (such as mobile companies) to ask for people’s Aadhar number and store the biometric information as a pre-condition to providing basic services, has been scrapped by the present judgement. Similarly, related to this, Section 33(2), which allowed the government to access people’s biometric information for the purpose of national security, has also been scrapped. Section 47, which did not allow a private citizen to lodge a complaint when his/her data had been compromised and allowed only the UIDAI (Unique Identification Authority of India) to do so, has similarly been done away with.
In the day-to-day services, while Aadhar has been made compulsory for linking with PAN card and filing Income Tax returns, the requirement of linking it with bank accounts, mobile numbers etc. has been done away with. At the same time, despite the modifications, the Court has upheld the constitutionality of the Aadhar mechanism. It has clearly stated that “The entire aim behind launching this programme is the ‘inclusion’ of the deserving persons who need to get such benefits. When it is serving the much larger purpose by reaching hundreds of millions of deserving persons, it cannot be crucified on the unproven plea of exclusion of some.” In keeping with this, the Court has upheld Section 7 of the Aadhar Act which makes it mandatory for people to have Aadhar in order to access welfare services and subsidy benefits.
The Court has also, disregarding the only dissenting voice on the bench of Justice Chandrachud, upheld the legality of Aadhar and its passage as a money bill under Article 110 of the Constitution. Since the Money Bill does not compulsorily require the assent of the Rajya Sabha and can be passed by the Lok Sabha, the Aadhar was passed as a Money Bill, on the ground that it involved government expenditure from the Consolidated Fund of India in order to provide access to welfare schemes.
While all of these major issues in the Aadhar judgement have made the judgement a balanced one, one needs to question the vehement opposition that the Aadhar exercise has faced so far from the brigade of social activists, in the areas of privacy, national security and social welfare. Incidentally, the very points of opposition, especially in the area of national security, turn out to be potential strengths of the Aadhar exercise. There is little doubt that the Modi government completely revamped the purpose and direction of Aadhar, undertaking it as one of its consistent reforms.
Overtly the focal point continued to remain the targeted delivery of welfare services with the aim of getting rid of middlemen, leakages and corruption in welfare schemes. Yet, there was an effort to make Aadhar mandatory for all other financial and services transactions (like linking bank accounts, mobile numbers, PAN card, admissions and exams etc.) and, more importantly, to track criminal records of people. This underlined the ambitious intention to strengthen the capacity of the Indian state to deal with financial duplicities, integrate service delivery options in a person’s life and deal with crimes like sexual harassment by using Aadhar in other areas like preparing a National Sex Offenders Registry and by attempting to enact a DNA Profiling Bill.
It was innovative thinking and right intention to try to make multiple uses of the unique identity that Aadhar gives to each person. The questions of breach of privacy ignore the fact that the mere dispossession of Aadhar does not protect privacy in any way. Just a few days after the Aadhar judgement, a giant social media company, Facebook, suffered one of its most massive data breaches. Government records along with personal information of millions of people registered on various government databases, are easily breachable with or without Aadhar. The advancing technological innovation that’s creeping into all aspects of our lives, and the privacy violations it brings with it, world over, has rendered the privacy invasion of Aadhar rather tame.
To suggest that Aadhar empowers the Indian state to become a “surveillance state” would be a misrepresentation, since India has already been, for the last several years, one of the biggest surveillance states in the world, after US. With their sophisticated intelligence services and technological prowess, no government in the world needs an Aadhar to spy on its own citizens. Least of all well-established powers like India.
Neither do private multi-billionaire companies need it. Most of the time, every basic office – even NGOs – in Indian cities has begun to record biometric details of its employees. The timings of entry and exit from offices are no longer recorded on paper, but through machines that record finger prints. Employees do it willingly and without a single protest. It is a near universal and accepted phenomenon in the cities and towns. Mobile phones manufactured by Apple have an option of recording the biometrics of the owner of the phone, to act as a phone password. We allow private companies like Apple to access and store our biometrics and our private details for corporate use, quite willingly, for no serious reason at all. Yet, the recording of similar biometrics by the government has given rise to sweeping allegations of spying and what not.
The surveillance is already full-fledged. It is called the ‘deep state’ in US – a term which has gained popular currency after Trump’s election and signifies how the powers and surveillance capacities of shadow agencies can render even the President of United States a puppet.
Yet, in India, a basic mechanism like Aadhar has managed to trigger such a massive debate on privacy. Nevertheless, with the recent judgement, at least the technicalities have been laid to rest. There is no assurance of whether the data already recorded via Aadhar will be deleted or not, but it is strange that we do not worry about the biometric data we have voluntarily handed over to our employers, to Apple etc. and make an issue out of the data gleaned through Aadhar. If misuse of data is the ultimate concern, then shouldn’t both recipients of data worry us?
After a certain point, it matters little whether the data was given voluntarily or involuntarily, if the ends being served are the same. Sharing your personal and biometric information voluntarily – with employers and mobile companies – in the coercive, ruthless and utilitarian capitalist system of today, is no ‘freedom’ of choice. Brazen and violative technology already pervades every aspect of our lives and we have accepted it. The freedom of choice was never there since the present state of affairs shows our enslavement to the current system and our captivity to the greed and crudity of nature fostered by it. To, thus, raise a hue and cry about something like Aadhar, has been most superficial.
In fact, there is a case to be made that the government – as a national security provider – is a relatively safer repository of our data than the capitalist agents to whom we willingly give it. Anyone who wants to misuse the data will misuse it, but it will be a losing battle to sue a company like Apple or your employers for doing so and lose millions in the litigation process itself. Therefore, the privacy debate has been the most vacuous aspect of the Aadhar controversy. If right to privacy is indeed a ‘fundamental right’ – as the Court had ruled last year and as regulators like EU have also insisted – then the entire spectrum of multinational companies in India and elsewhere need to be sued for consistently violating it with ever more innovative means!
Incidentally, surveillance, which the government already does, was not the purpose of Aadhar, as alleged by rights activists. The programme was to be used towards more fruitful social ends, like delivery of welfare services and, significantly, facilitating sophisticated ideas like the National Sex Offenders Registry, through which criminals could be tracked and prevented from repeating their crimes. Countries like US also have such registries. It is a complement to civic and broader national security. An Aadhar card in itself can be duplicated and misused by terrorists and criminals, but DNA-based biometrics will not. To have such information retained by the government is actually a complement to safety.
Certainly, the delivery of welfare services is an area that needs more work. The leakages in Aadhar are many, in this area. Duplicate systems like PDS make things complicated for the target groups, difficulty in using Aadhar has led to some exclusions and cases of hunger deaths. Despite these loopholes, the Court has pronounced Aadhar to be mandatory to get access to welfare services. The rationale is clear – without direct linkage through Aadhar, the levels of inefficiency and role of middlemen in the delivery of services will become rampant again – more so than at present. But the intent of having a unique identity will be lot more efficient – if the system and technology is reformed – in delivering the services directly.
Quota in Promotions for Scheduled Castes (SCs) and Scheduled Tribes (STs):
In yet another major judgement from the preceding week, the Supreme Court has, referring to the M. Nagaraj judgement of 2006 and the Indira Swahney case of 1992, ruled on the criteria for backwardness and the question of promotions for SCs and STs in government jobs. The government has been pushing for having quota in promotions for SCs/STs on the basis of their population and wanted the restrictive 2006 judgement referred to a larger bench and reconsidered. However, the present bench turned down both the pleas.
The Court had, overriding a part of the Nagaraj judgement, ruled that:
- ‘Backwardness’ of SCs cannot be proven by collection of quantifiable data by the states. The Nagaraj judgement of 2006 had mandated that states need to provide quantifiable data on the backwardness of SCs and STs, the facts about their inadequate representation in government jobs and the overall administrative efficiency, before providing quota in promotions to them.
The present judgement ruled that the Nagaraj judgment of 2006 runs afoul of the Indira Swahney case of 1992. According to the 1992 judgement, ‘backwardness’ is historical and social. Therefore, in principle, the present judgement has held ‘backwardness’ to be a parameter that cannot be proven by quantifiable data. The implication is that this will make it easier for the government of the day – central and states – to facilitate quota in promotions for SCs and STs in government jobs. However, in talking about issues of representation of Dalits in a cadre, the data needs to be collected.
- However, the Court has upheld ‘backwardness’ as a non-quantifiable criterion only in principle. In practical terms, the implications are entirely different. In the same judgement, the Court has also upheld the ‘creamy layer’ principle for filtering out who gets to avail quota in promotions in government jobs. This means that economically well-off Dalits cannot avail of quota in promotions. Up till now, the creamy layer principle has been applicable only to OBCs.
Now, the Court has held that “The whole object of reservation is to see that backward classes of citizens move forward so that they may march hand in hand with other citizens of India on an equal basis. This will not be possible if only the creamy layer within that class bag all the coveted jobs in the public sector and perpetuate themselves, leaving the rest of the class as backward as they always were.”
The Court has maintained that the lists of castes, groups or sub-groups listed in the Presidential Lists under Articles 341 and 342 of the Constitution will not be tampered with. The lists define who will be considered as SC/ST in any state or Union Territory. The bench held that, “It is only those persons within that group or sub-group, who have come out of untouchability or backwardness by virtue of belonging to the creamy layer, who are excluded from the benefit of reservation.”
This means that irrespective of data on backwardness not being collected, the Court has still made untouchability an economic construct by the applying the creamy layer principle. The assumption in the judgement is that once people reach a certain level of economic development, they come out of untouchability.
In doing so, the Court has overruled the Centre’s plea that reservation in promotions should be provided based on the proportion of population of Dalits to ensure adequate representation. It has also junked the view that untouchability is a historical problem and does not go away with economic progress. No matter what level of economic progress the Dalits reach, the social discrimination against them continues.
If a statue inaugurated by a union minister, Jagjivan Ram, can be purified with Ganga water, it shows that such cases are rampant and irrespective of material political or economic clout, the discrimination exists. Similarly, it has been alleged that there are multiple cases pending which highlight that Dalits have faced discrimination in getting promotions in bureaucracy, judiciary and other government services by the fact of their caste identity.
The overall tenor of the judgement of the Court ran against providing quota in promotions, not only because the creamy layer does not need it, but also in the interests of administrative efficiency. The Court has stated that, “as the post gets higher, it may be necessary, even if a proportionality test to the population as a whole is taken into account, to reduce the number of Scheduled Castes and Scheduled Tribes in promotional posts, as one goes upwards. This is for the simple reason that efficiency of administration has to be looked at every time promotions are made.”
From the overall judgement, it is clear that it does not give any headstart or freedom to implement the policy of quota in promotions. The conclusion is simple :–
The first rung is that while the Court agreed that backwardness cannot be quantified and data need not be collected to prove the same, yet, before making any policy to grant reservation in promotions, the state governments would need to prove that these castes were inadequately represented in the service in the first place. And this representation needs to be proven by collecting quantifiable data. Therefore, backwardness, it is agreed, is presumed and cannot be shown through data, but, before implementing the policy, data is needed to show that SCs/STs are inadequately represented in the service.
Essentially, this makes the ‘relief’ provided by the Court merely a matter of principle and effective at a theoretical level only. In practical terms, the Court has very much upheld the Nagraj verdict. Data proof of backwardness is still needed – and that too it needs to be data with respect to the total posts and not any particular cadre in question. With such a wide sample, the representation numbers of SCs/STs is bound to go up in any practical exercise.
The second rung is that the Court in making an argument to limit the promotions of SCs/STs to higher posts in the interests of efficiency, has mandated that the creamy layer principle will be strictly applied, and that, no reservation shall breach the 50% limit even if the state is under compelling circumstances. All these decisions of the Nagraj judgement were upheld here too.
It is surprising that certain groups are stating that the Court has made it easier to grant reservation in promotions – simply because it had overruled the 2006 judgement’s definition of how backwardness can be shown in principle. It does not amount to anything in practical terms as we can see. If anything, providing reservation in promotions has become even more tough! No wonder Dalit politicians and activists have already started hounding the government to challenge the judgement and take an ordinance route, subvert the conditions laid down by the Supreme Court and provide quota in promotions without regard to any of the creamy layer and other criteria laid down by the Court.
Certainly, what the Dalit politicians are really doing is mere ‘messaging’ or ‘signalling’ before the 2019 elections. Even if the Court’s stipulations are disregarded, there would be absolutely no guarantee of ensuring that promotions in reservation would be progressive. The current system of promotions – under which a lot of arm-twisting and networking tactics are required – will continue as before. Dalits can then compete with each other to fill the reserved posts by using similar tactics and, most likely, the powerful ones or the ones who can game the system by buttering up their seniors the most, will get the best advantage. If this is being passed off as ‘social justice’, it is a travesty.
On the other hand, if the creamy layer criteria is included, then, at least, for the initial posts during the start of the career and in the middle stages, the truly backward Dalits can get somewhere instead of only the powerful ones exploiting the system of reservation. Yet, protesting voiced by the Dalit politicians ( many of whom belong to the creamy layer) indicate that they care only about numbers and not about the truly underprivileged getting the benefit. The Court has found a balanced answer to the problem of quota in reservation, which the Dalit groups are now trying to subvert.
The Ayodhya Verdict
The recent verdict delivered by the Court was not directly related to the Ayodhya dispute, but will have far reaching implications for how the final verdict will come out. It is a critical foundation stone for the future verdict. The Court has, in its present judgement, held the Babri Masjid dispute to be primarily a land title dispute and effectively de-coupled it from matters of faith. It has done so by upholding the 1994 Ismail Faruqui judgement that a mosque is not central to Islam and namaz can be offered anywhere, even in the open.
The genesis, in brief, lay in the fact that, in 1993, the Narasimha Rao government had legislated an Act to acquire 67.7 acres of the Babri Masjid mosque, nearly a year after it was demolished in 1992 – to prevent any further conflagration. This action of the government was challenged in the 1994 case. The Court had, in 1994, upheld the government’s Act, stating that a mosque is not central to Islam and Muslims can offer prayers anywhere, even in the open.
In the present context, while the Court was set to hear the main Ayodhya title dispute, the activist advocate Rajeev Dawan, resurrected the 1994 judgement and challenged it earlier this year, pleading that it be referred to a larger bench and reconsidered before any decision on the main dispute.
Now, with the latest decision, the Court has upheld the 1994 judgement by insisting that the question of centrality of mosque to Islam was purely contextual and, in this context, it was upholding this principle since Ayodhya was mainly a title dispute over land. The same principles about centrality of mosque to Islam cannot be applied from this judgement. They will also have to be seen on the basis of the context.
Therefore, in the Ayodhya case, as per the present judgement, the government can acquire the land of the mosque under its power of eminent domain without affecting the provisions of religious freedom under Articles 25 and 26 of the Constitution. This is because, in principle and theology, the place of worship is not of a particular significance in Islam. In religions where the place of worship is significant to the tenets of that religion, the state cannot use its power of eminent domain, not even in a contextual sense.
While Justice Nazeer had dissented, yet, from the majority opinion it becomes clear that the Court has not violated any provisions of Islam or imposed its own understanding on the religion. It has passed the judgement on the place of worship based on the internal tenets of Islam itself. In fact, it has gone one step further and shown that it has not had the temerity to make this an absolute understanding of Islam, but only in the particular context of Ayodhya as a land dispute. Therefore, it insulates the place of worship argument from being used on other subsequent judgements.
Of course, the 2010 verdict by the Allahabad High Court dividing the land between Nirmohi Akhara, Ram Lalla and the Sunni Waqf Board, was also based on the 1994 understanding that a mosque is not central to Islam. With the resumption of the Ayodhya hearings, the Supreme Court too will treat this as a land dispute and keep debates on faith completely aside.
Even if the matters of faith were introduced, there is a compelling case to be made that Ayodhya as Ram’s birthplace is central to Hinduism, much like Mecca and Vatican, and while mosques, temples and churches are many, such places are unique. It would be injustice if Hindus were not allowed to offer prayers in the Ram temple. For Muslims, this was just another mosque built during the Mughal rule as late as the 16th century during the modern era, but for Hindus, even from the point of view of faith, it holds a lot more ancient significance.
With the Ayodhya hearings set to resume on October 29th, it remains to be seen what course of action the new CJI takes.
From the above judgements, it is clear that the Court has dealt with some very tricky questions that have, at some point or the other, nearly ripped apart the social fabric of the country. The Court judgements are never set in stone and it is, ultimately, up to the government of the day to make legislation to implement them. While the Ayodhya verdict was just a sub-case and the real case will be heard later, the other two judgements on Aadhar and quota in promotions were decisive.
The debates and the issues surrounding them showed the immense degree of degradation and lack of thinking capabilities that our society has witnessed. In both the cases, the activist-petitioner’s contentions were based on propagandist ideas and completely disregarded the practical welfare of the very people they claimed to champion.