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Disproportional Proportionality: An Analysis of the Proportionality Test, Aadhaar, and Digital ID.

Shruti Trikanad

Justice Chandrachud, in his dissenting judgment in the Aadhaar case, wrote of the increasing use of the proportionality test as a “shift from the culture of authority to a culture of justification.”[1] According to him, testing the Aadhaar ID scheme against proportionality was aimed at holding the government accountable for its policy measures, rather than that of the court second-guessing the wisdom of the legislature. How the Aadhaar court fared in applying this test— especially when compared to similar cases before other courts— is a question this essay hopes to address. In this post we look at the first leg of the proportionality test to identify the legitimacy of the state’s interest in implementing their infringing measure, along with overarching issues of the burdens of proof required by the different courts.

The Aadhaar case was a good litmus test for the use of the proportionality test: the Aadhaar ID system is a popular “development” policy measure that has public backing, but is also pervasive and potentially deeply impacts privacy rights of the citizenry. However, there was much lacking in the courts’ application of the test, likely failing the high ideals the test sought to introduce. This is best highlighted by examining how other courts handled similar cases.

National biometric ID programs have recently been introduced worldwide by government measures to establish a way to reliably identify residents and provide them with services they are entitled to. However, these have come at the cost of issues of privacy, exclusion, discrimination, state power and constitutionality. The four cases explored here are the Aadhaar case in India,[2] the Huduma Namba case in Kenya,[3] the Robinson case in Jamaica,[4] and the Madhewoo case in Mauritius.[5]* These are the only cases challenging national biometric ID that have reached apex courts in their respective countries, allowing us insight into Digital ID systems and their interplay with constitutional protections.

These cases all had one thing in common: they all rested on the proportionality ­of the measure that gave rise to the digital ID system. Since the constitutional framework in the respective countries allowed violations so long as they could be reasonably justified and were proportionate in their infringing impact, the courts looked at questions of the aim of the ID program, its manner of implementation, and its potential impact on the rights of people involved.

The proportionality tests, though marginally different across the cases, largely followed that of the R v. Oakes court:[6]

1. The government must first show that the law under review has a goal that is both “pressing and substantial in a free and democratic society.”

2. The court then conducts a proportionality analysis using three sub-tests.

a. First, the provision of the law that limits a fundamental right must be rationally connected to the law’s goal. If it is arbitrary or serves no logical purpose, then it will not meet this standard.

b. Second, the provision should minimally impair the violated constitutional right. It will be constitutional only if it impairs the right as little as possible or is “within a range of reasonably supportable alternatives.”

c. Finally, the court examines the law’s proportionate effects. Even if the above steps are satisfied, the effect of the provision on constitutional rights may be too high a price to pay for the advantage the provision would provide in advancing the law’s purpose. If so, the law is unconstitutional.

In Jamaica, the court found that several features of the ID system produced disproportionate risks, and that since the state did not do enough to justify its measure or safeguard its residents, the whole system must be struck down for violating the constitution.[7] Similarly, in Kenya, although the court found that its residents’ rights can be infringed for a digital ID system, it halted the operation of the system until the Kenyan government implemented a sufficiently robust data protection legislation, and framed regulations to safeguard the data collected. They held that in its current form, the ID system was risky and not well protected, and therefore unconstitutional. The Mauritian court found that while the collection of biometric data for the purpose of an ID system was valid, its storage exposed ID holders to risks of unauthorized access especially in a centralised system, and that this disproportionality warranted a termination of the system.[8] Only in India did the court allow the Aadhaar ID system to continue despite the risks it introduced, holding that because of the safeguards governing the system and the important aim it sought to achieve, it was proportionate and constitutional.[9]

Burden of proof and rules of evidence

Before individual issues of the cases are considered, an important question to answer is the burden of proof required by the respective courts. The burden of proof is important to the success of a case, and determines which party is given the presumption of accuracy and which party is responsible for presenting evidence. Particularly where one of the parties is the state, and has an advantage in having better access to information and evidence about its own technology, this can be looked at as an unfair burden on the petitioners; certainly one that impacted the final outcome.

In the Jamaican case, the Court categorically applied a burden of proof to the case, that of preponderance of probability.[10] This, they stated, was more appropriate than the proof beyond reasonable doubt standard, since it was a matter of “reasonableness” and “democratic society”.[11] In the reasonable doubt standard, the burden of proof is met if there is greater than a 50% chance that, based on all the reasonable evidence shown, the plaintiff's claims are true and the defendant did in fact do the wrong that caused the damage. The alternative criminal law standard was rejected by the court, as it would be unduly onerous on one of the parties.[12] In the context of the ID system (especially one that is yet to be fully implemented), this means that the petitioners need not give definitive evidence of infringement or harm caused by the system to prove a violation of their rights; they only need to show the likelihood of it. However, the court also pointed out that even within this civil law standard, the degree of cogency of evidence required depends on the gravity of the matter before the court; for a violator of important fundamental rights to justify their violation, as is the case here, compelling evidence is necessary.[13]

In contrast, this thorough investigation was entirely missing in the Aadhaar case. The Indian Supreme court even went so far as to reject evidence supporting proof of exclusionary harms caused by the mandatory use of Aadhaar, as it was disputed by the respondents, and they had no means to definitively determine its accuracy.[14] The court claimed it could not invalidate a legislation on the basis of material whose credibility was not tested. Thus, by failing to articulate an evidentiary burden about factual questions, or articulating what would happen in case of factual uncertainty, the court overlooked a crucial aspect of its case— one that eventually (and arbitrarily) favoured the State. This would patently fail the test identified by the Jamaican court, as it does impose an unusually high burden on the petitioners to prove potential harm caused by the ID system. This is more cause for concern in the context of a Digital ID system, as while immediate harm is not obvious, its consequences compound over time. The court was inconsistent even in the standard it imposed on the government; it relied on key evidence presented by the chief administrator of the Aadhaar system that was not even placed on affidavit,[15] and therefore would not normally be accepted as evidence.

State interests, evidence, and legitimacy

The very first step in determining the proportionality of a state measure is identifying the state interest or goal, and evaluating its legitimacy. In all of the four cases analysed, the courts applied a variation of the proportionality test that required an analysis of not just whether the goal or state interest was legitimate but also if it was of sufficient importance (in a democratic society) to be infringing on constitutional rights.[16] For this test to be satisfied, the state has to show that the goal was important for the society it is operating in, and it is aimed at tackling some identified problem. For instance, in R v. Oakes, the court stated that the objective must “relate to concerns which are pressing and substantial,” so that concerns that are trivial to a democratic society are not met with rights-infringing measures.[17] The court, in this case, was deciding on the constitutionality of a narcotics law aimed at criminalising drug trafficking,[18] and concluded a legitimate state aim on the basis of government evidence showing the increase of drug trafficking in the state,[19] along with evidence of success in other countries that adopted similar criminalization measures to tackle it.[20]

In the Aadhaar case, the primary aim in establishing Aadhaar, as identified by the court, was to address fraud and leakages in the welfare system, and ensure the state fulfils its duty of delivering welfare to all eligible citizens.[21] There was no doubt that such an aim is important and non-trivial by itself, but its legitimacy was disputed because of the overbroad categorisation of this as a problem arising from the lack of “unique identities”. The petitioners claimed that the state was unable to show that the leakages in the welfare system were due to identity fraud, as opposed to eligibility and quantity frauds (which the petitioners claimed comprised the majority of such leakages).[22] The court was, however, unmoved by this, and did not engage in this challenge, simply holding that the state aim of providing “unique” identity via technology to ensure welfare reached eligible beneficiaries was aimed at enhancing citizens’ rights to food and dignity, and was therefore legitimate.

In contrast, the Jamaican court interpreted the test strictly, and struck down every aspect of the ID system that was not well justified by a legitimate state aim. For instance, they held that the aim of providing reliable identification to residents was not sufficiently proven by the white paper describing its need submitted by the Attorney General as evidence, and that in the absence of authentic sources and statistics showing the requirement of the ID system, the state aim would not pass the test.[23] They also struck down the provisions that made the system mandatory, allowed third party access, discriminated against residents etc because the state could not tender justifiable aims for introducing them.[24] In Mauritius and Kenya, the courts found that the state aims of providing secure identity systems were legitimate. In the Mauritius court, the state was able to show that the specific problem aiming to be addressed was that of identity fraud that occurred rampantly in the old system, due to people registering several times for the same ID. They also held that the respondents were able to show why the use of fingerprints were essential, and this evidence was not challenged by the petitioners. Once again, this differs wid