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.