(Editors note: There’s been an update: the Supreme Court has referred the matter to the larger bench now)
From reports of yesterdays Supreme Court proceedings in the Aadhaar review petitions, it appears that counsel invoked the doctrine of waiver: it was argued that citizens were entitled to waive their fundamental right to privacy (assuming that privacy is a fundamental right) in return for the governmental benefits that the possession of an Aadhaar card confers. Senior Advocate K.K. Venugopal stated in court, for instance, that “when a poor man says ‘here take my privacy, please give me money’, Your Lordships are saying ‘don’t take the money, please retain your privacy’.” Attorney-General Mukul Rohatgi, on similar lines, argued that “a poor starving man will have no second thoughts about shedding his privacy rights to enrol for Aadhaar.”
The implications of the argument are significant, because it would allow the government to make Aadhaar not just optional, but mandatory as well, at least for accessing certain benefits: the government could argue that under a mandatory Aadhaar regime, citizens still have the option of protecting their privacy by foregoing Aadhaar (and its accompanying benefits), or taking Aadhaar, and waiving their right to privacy. In other words, citizens can choose to waive their right if they want access to certain benefits.
Framing the question as being one of waiver, however, misstates the real issue. The real issue is not whether, in the abstract, citizens can waive their fundamental rights if they so choose. It is whether the government can impose waiver of fundamental rights as a condition for accessing certain benefits. In fact, even that might be too strong a statement. Consider another way of putting it: can access to the most efficient and effective way of accessing government benefits be made contingent upon an individual waiving her right to privacy?
With respect to Aadhaar, the stakes are even higher, because the debate has been framed around the needs of poorer citizens to access government benefits. For many of these citizens, the choice between accessing benefits and losing privacy is a false choice, because it requires them to choose between a privilege that is essential for their livelihood, and a fundamental right.
It is in this context that the Supreme Court’s doctrine of “unconstitutional conditions” becomes significant. The clearest expression of the doctrine is found in the concurring opinion of Justices Chandrachud and Mathew in the case of Ahmedabad St Xavier’s College vs State of Gujarat:
“The doctrine of “unconstitutional condition” means any stipulation imposed upon the grant of a governmental privilege which in effect requires the recipient of the privilege to relinquish some constitutional right. This doctrine takes for granted that ‘the petitioner has no right to be a policeman’ but it emphasizes the right he is conceded to possess by reason of an explicit provision of the Constitution, namely, his right “to talk politics”. The major requirement of the doctrine is that the person complaining of the condition must demonstrate that it is unreasonable in the special sense that it takes away or abridges the exercise of a right protected by an explicit provision of the Constitution… though the state may have privileges within its control which it may withhold, it cannot use I a grant of those privileges to secure a valid consent to acts which, if imposed upon the grantee in invitum would be beyond its constitutional power.”
Soon after, the judges explained the purpose of the doctrine of unconstitutional conditions further, by referencing the reasoning of Justice Sutherland at the US Supreme Court, in strikingly relevant terms:
“If this could be done, constitutional guarantees, so carefully safeguarded against direct assault, are open to destruction by the indirect, but no less effective, process of requiring a surrender, which, though in form voluntary, in fact lacks none of the elements of compulsion. In reality, the carrier is given no choice, except a choice between the rock and the whirlpool–an option to forego a privilege which may be vital to his livelihood or submit to a requirement which may constitute an intolerable burden.”
“This is much the same as what Das, C.J. said in In re: The Kerala Education Bill: No educational institutions can in actual practice be carried on without aid from the State and if they will not get it unless they surrender their rights, they will, by compulsion of financial necessities, be compelled to give up their rights under Article 30(1)“.
This last bit is particularly important, because the Aadhaar debate is framed around the access of poorer citizens to government benefits. For these citizens, those benefits are financial necessities. In Re Kerala Education Bill and Ahmedabad St Xavier’s College make it clear that by putting citizens in a position where they have to make a choice between a compelling financial necessity and the waiver of fundamental rights, the government is effectively giving them no choice at all, and is restricting their fundamental rights indirectly, by providing an illusion of choice and waiver.
This logic applies squarely to the argument that privacy rights may be waived in order to access benefits linked to Aadhaar. And, as I argued earlier, its application is not limited to services or benefits that the government might link with Aadhaar, in order to make it mandatory. As long as citizens do not have access to equally effective and efficacious ways of accessing benefits that Aadhaar provides, but without loss of privacy, the choice before them is a false one, and the doctrine of unconstitutional conditions apply.
(Gautam Bhatia is a practicing advocate in Delhi)