It is difficult to understate the scale and significance of Aadhaar, the government’s programme for a national identification card for every Indian. More than one billion Indians have already been enrolled, and their personally identifiable information—biometrics, bank-account and demographic details—are already held in a government database, the legality and security of which is contested. Disagreements about Aadhaar are disagreements about no less than what it means to be a citizen in a democratic state, as the unfolding litigation challenging the Aadhaar programme attests.
Several petitions challenging Aadhaar are pending before the Supreme Court. Until the court pronounces its final judgment on the programme’s legality, this much is clear from its previous orders: enrolment into Aadhaar is “purely voluntary.” This ruling has been honoured in its repeated breach by the government. The latest breach has been in the passage of an amended Finance Bill, 2017, which would make an Aadhaar number mandatory for the filing of tax returns.
The cases before the court raise two classes of questions about the Aadhaar programme and the Aadhaar Act, which enables it. Both classes relate to their compatibility with the Constitution of India, in terms of its text as well as the value commitments that the text necessarily implies. Chief among these is a commitment to our republican form, which requires a recognition that sovereign power vests not in any political party or constitutional functionary but rather in us all, as citizens. At play in the Aadhaar cases are all the corollaries of this commitment: that the government, parliament and courts are mere custodians of political power, that Indian citizens are not subjects, and that they are entitled to a government that is transparent, accountable and solicitous of citizens’ rights above all else.
The first class of questions before the court relates to matters of the everyday life of a democratic government and how it ought to look. These arguments posit that Aadhaar conflicts with both constitutional structure and process. They rest on the notion that only democratic processes can yield democratic and constitutionally defensible outcomes. They are a call for a government that operates in good faith.
The most recent impetus for concerns in this class is the passage of the Finance Bill, 2017—a money bill—in the Lok Sabha on 30 March. Money bills are a special species of legislation. Article 110 of the Constitution leaves no doubt as to their contents: a money bill “contains provisions only dealing with” matters relating to public finances. The same provision empowers the speaker of the Lok Sabha to make the final decision in instances where any question as to whether a bill has the character of a money bill arises. Article 109 of the Constitution, which lays out the procedure through which a money bill is passed, gives the Rajya Sabha little effective say: a money bill can only be introduced in the Lok Sabha, and unlike ordinary legislation, the Rajya Sabha can only recommend amendments to the bill, which the Lok Sabha is free to disregard if it chooses.