Clarity and facts on the ground

(Source: The Hindu)

Why it’s essential that the Supreme Court speedily hears the Aadhaar petitions

There are several conflicting accounts of precisely what transpired when senior advocate Shyam Divan made a request late in March for an early hearing of a batch of petitions that question the validity of the unique identification scheme, implemented through the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 — or the Aadhaar Act. The next morning’s newspapers each produced their own versions: in the narration of some, the court made it clear that Aadhaar ought not to be made mandatory for welfare schemes; others reported that the court had also expressly clarified that Aadhaar could, in fact, be imposed in relation to certain state directives. “Let us take Income Tax returns. Is this a benefit? No, we don’t think so,” the Chief Justice of India, J.S. Khehar, sitting along with Justices D.Y. Chandrachud and S.K. Kaul, said, according to The Indian Express. “You can ask someone to have a bank account on the basis of Aadhaar. That is not a benefit. But if you want to make it mandatory for a poor person in a village to get his meagre pension, that could mean extending a benefit… For benefits, it (Aadhaar) cannot be pressed… for non-benefits, it can be done.” These statements, regardless of their exact import, understandably raise legitimate concerns. After all, they were made by the CJI, barely a day after the Lok Sabha had passed amendments to the Finance Bill making Aadhaar mandatory for securing a permanent account number (PAN), and consequently for filing income tax returns. But in attempting to comprehend the significance of these remarks, we must be careful not to ascribe any excessive value to them; indeed, there’s practically no utility to be gained in trying to put different news reports together to try to ascertain what the CJI may have really meant. For these statements were just oral ripostes, which don’t bear the force of a judicial order. Point of no return What was more telling, however — and ultimately more damaging — about this entire episode was the result: the denial of Mr. Divan’s plea for a speedy inquiry into the validity of Aadhaar. It is now entirely likely that by the time the court gets around to hearing the challenge, the government will render Aadhaar a fait accompli, with its destiny, in this case, having been sealed by successive CJIs who have failed to so much as constitute a bench to hear the petitions. This lapse also highlights a deeper malaise in our judicial structure: where one person, the CJI, as the sole master of the Supreme Court’s roster, decides the composition of benches, and, as a result, wields enormous administrative power over which cases get heard and which cases get placed on a seemingly never-ending back burner. For close to 19 months, the petitions challenging Aadhaar have been stuck in an administrative logjam. In August 2015, at the bidding of the Union of India, a three-judge bench headed by Justice J. Chelameswar ruled that there was substantial confusion on whether the Constitution guaranteed citizens a right to privacy, and therefore that the case had to be placed before a larger bench, of an appropriate strength to be determined by the CJI. The bench also added (something which the court reiterated again in October that year) that it would be desirable to have the case finally heard at the earliest, having regard to its importance. But, all these months later, with Aadhaar becoming more and more entrenched in the Government’s grand plan, we are no closer to having a bench constituted to decide the legal challenge to the scheme. Consider the consequences. In a few months’ time, millions more would have enrolled with the Unique Identification Authority of India, submitting their biometric data, with a view to staying clear of the long arm of the country’s punitive laws. Given that there is still no authoritative ruling from the Supreme Court on whether the state’s present acts in extending the use of Aadhaar constitutes a contempt of the court’s previously granted interim orders, it is also quite plausible that the government is far from finished. As a result, when the court finally gets around to listing the petitions before a freshly minted seven-judge Constitution Bench — let’s say sometime in the year 2021 — the damage wrought by Aadhaar will be incapable of being undone. By then, India would have taken an irredeemable step towards becoming a surveillance state, and the question of whether we actually have a constitutionally protected right to privacy would be all but moot. This failure of the Supreme Court, needless to say, wouldn’t be unique to the Aadhaar challenge. There were a number of false dawns before the court had, on December 16, referred the challenge to the demonetisation policy to a Constitution Bench. Now, several weeks later, given that the court had explicitly refused to grant a stay of the policy, even if a bench is indeed constituted to hear the petitions, it’s unlikely to matter much: for the state has already thrust the policy on us, and its impact is now permanent. Today, were the court to hear the petitions challenging Aadhaar, it’s no doubt conceivable that, on an examination of the merits, it might conclude that India’s citizens possess no fundamental right to privacy, or that Aadhaar does not infringe on this right in a constitutionally unsustainable manner. Whatever our respective predilections might tell us about such a view, at least we might be able to take heart from the fact that the court would have performed its basic function under India’s democratic structure: of testing legislative and executive acts against the guarantees of the Constitution. What it’s presently doing, though, is indefensible. It is not only rendering academic these significant constitutional questions but, as the lawyer Gautam Bhatia has pointed out, it’s virtually deciding in favour of the government without actually delivering a judgment. Delays in constitutional judgment, as K.M. Munshi, a member of the Constituent Assembly, had pointed out in a draft note in 1947, can have deep and perilous consequences on fundamental rights. “It is of the highest importance that the question whether a law is valid or not must be decided at the earliest moment,” he wrote. “Any uncertainty about its validity will lead to great hardships. The object of the fundamental law will be frustrated if people have to serve sentences, pay fines or deny themselves the privileges given by the Constitution for a long time under an invalid law.” Most constitutional courts around the world are acutely aware of these dangers. Even recently, there are notable examples from other jurisdictions where courts have fast-tracked certain cases with a view to ensuring that the questions they raise aren’t consigned to theory. The U.K. Supreme Court heard in December 2016 and ruled in January this year that British Prime Minister Theresa May must get Parliament’s approval before formally triggering Britain’s exit from the European Union. Also, last month, a South African High Court ruled that the decision by President Jacob Zuma to withdraw from the International Criminal Court was not only premature but was also procedurally lawed. In both these cases, a failure to decide expeditiously would have had irreversible consequences. It was to negate such an impact that the courts made suitable arrangements for a quick hearing. Comparing India’s Supreme Court to other constitutional courts around the world can be a difficult and even tedious exercise. There’s no question that our judiciary is fraught with an overflowing docket. But can there really be any excuse for a failure to rule punctually on live conflicts between the state and the citizenry? The summer proceedings In response, it may well be pointed out that the Chief Justice has established three Constitution Benches that are scheduled to function during the court’s summer vacation. But this programming is a red herring, unless cases are prioritised for hearing in a transparent and logical manner. Thus far, the issues that appear to be accorded precedence over Aadhaar include the validity of triple talaq and polygamy as practised among Muslims, a cause taken up by the court virtually on its own motion, and the legality of WhatsApp’s privacy policy, which the court will begin hearing on April 18. This isn’t to suggest that these cases aren’t important. But given that they don’t encompass disputes that pit the individual directly against the state, the consequences that they are likely to have, from a standpoint of public and constitutional law, aren’t as instantly significant as the issues that the Aadhaar challenge presents. That these cases are being prioritised over Aadhaar is therefore curious, at its best, and is, at its worst, seriously damaging to any remaining notions that we might have of the Supreme Court representing a bulwark of freedom and democracy.

Important Vocabularies for improve your knowledge

1) Panacea

Meaning: Something that will solve all problems; Something that will cure all illnesses.

Example: Technology is not a panacea for all our problems.

Synonyms: Remedy, Cure

Antonyms: Injury, Pain

2) Pandemonium

Meaning: A situation in which there is a lot of noise and confusion because people are excited, angry, or frightened.

Example: Pandemonium reigned in the hall as the unbelievable election results were read out.

Synonyms: Anarchy, Tumult

Antonyms: Calm, Quiet

3) Ambit

Meaning: The range or limits of the influence of something.

Example: They believe that all the outstanding issues should fall within the ambit of the talks.

Synonyms: Extent, Extension

4) Divisive

Meaning: Used to describe something that causes great and sometimes unfriendly disagreement within a group of people.

Example: The Vietnam War was an extremely divisive issue in the US.

Synonyms: Disruptive, Discordant

5) Crescendo

Meaning: A gradual increase in loudness, or the moment when a noise or piece of music is at its loudest.

Example: The music reached a crescendo.

Meaning: An increase in excitement, danger, or action.

Example: There has been a rising crescendo of violence in the region.

Synonyms: Escalation, Climb

Antonyms: Base, Decline

6) Jargon

Meaning: Special words and phrases that are used by particular groups of people, especially in their work.

Example: The IT&T industry is rife with acronyms, catch phrases and jargon.

Synonyms: Argot, Idiom

Antonyms: Standard, Silence

7) Pageant

Meaning: A show, usually performed outside, that consists of people wearing traditional clothing and acting out historical events.

Example: A beauty pageant.

Synonyms: Fair, Celebration

Antonyms: Hiding

8) Overt

Meaning: Done or shown publicly or in an obvious way and not secret.

Example: He shows no overt signs of his unhappiness.

Synonyms: Apparent, Definite

Antonyms: Obscure, Hidden

9) Vitiate

Meaning: To destroy or damage something.

Example: Development programmes have been vitiated by the rise in population.

Synonyms: Annihilate, Abolish

Antonyms: Allow, Support

10) Wrangle

Meaning: An argument, especially one that continues for a long time.

Example: Lengthy wrangle about costs.

Synonyms: Argument, Dispute

Antonyms: Harmony, Peace

11) Chagrin

Meaning: Disappointment or anger, especially when caused by a failure or mistake.

Example: My children have never shown an interest in music, much to my chagrin.

Synonyms: Mortify, Abash

Antonyms: Comfort, Joy

12) Wily

Meaning: (of a person) intelligent, having a very good understanding of situations, possibilities, and people, and often willing to use tricks to achieve an aim.

Example: A wily politician.

Synonyms: Crafty, Foxy

Antonyms: Candid, Frank

13) Regale

Meaning: To entertain someone with stories or jokes.

Example: Grandpa regaled us with tales of his small-town childhood.

Synonyms: Indulge, Divert

Antonyms: Anger, Pain

14) Labyrinth

Meaning: A confusing set of connecting passages or paths in which it is easy to get lost.

Example: Finally, through a labyrinth of corridors she found his office.

Synonyms: Maze, Riddle

Antonyms: Explicate, Ravel

15) Solvent

Meaning: (especially of companies) having enough money to pay all the money that is owed to other people.

Example: Many insurance companies are under pressure to increase premiums to stay solvent.

Synonyms: Acetone, Profitable

Antonyms: Insolvent, Ruined

16) Solicit

Meaning: To ask someone for money, information, or help.

Example: To solicit donations for a charity.

Synonyms: Beg, Pray

Antonyms: Dodge, Bestowal.

17) Proclivity

Meaning: The fact that someone likes something or likes to do something, especially something considered morally wrong.

Example: His proclivity for shapely blondes.

Synonyms: Bias, Turn

Antonyms: Repulsion, Hate

18) Diabolic

Meaning: Extremely bad or shocking.

Example: Conditions in the prison were diabolical.

Synonyms: Infernal, Satanic

Antonyms: Angelic, Moral

19) Expatriate

Meaning: Someone who does not live in their own country.

Example: A large community of expatriates has settled there.

Synonyms: Exile, Banish

Antonyms: Allow, Deliver

20) Fallacy

Meaning: An idea that a lot of people think is true but is in fact false.

Example: It is a common fallacy that women are worse drivers than men.

Synonyms: Deceit, Evasion

Antonyms: Fidelity, Verity

21) Tote: Carry, wield, or convey (something heavy or substantial).

Tout: Attempt to sell (something), typically by a direct or persistent approach.

22) Overdo: Do, use, or carry to excess; Exaggerate.

Overdue: Not having arrived, happened, or been done by the expected time.

23) Sheer: Nothing other than; Unmitigated (used for emphasis).

Shear: Break off or cause to break off, owing to a structural strain.

24) Wretch: An unfortunate or unhappy person.

Retch: Make the sound and movement of vomiting.

25) Riffle: Turn over something, especially the pages of a book, quickly and casually.

Rifle: A gun, especially one fired from shoulder level, having a long spirally grooved barrel intended to make a bullet spin and thereby have greater accuracy over a long distance.

26) Outrank: To have a higher rank than someone.

27) Spokesperson: A person who is chosen to speak officially for a group or organization.

28) Talking book: A spoken recording of a book, used especially by blind people.

29) Stick shift: A gear lever.

30) Title holder: The person who has the right to own a property and has a document to prove this.