The comments made by a judge during the hearing of a case may not always indicate the direction of the judicial thinking on the matter. Nor do they point to the nature of the final decision of the court in the case. Judges sometimes make such remarks to test the strength of arguments. But a comment made by one of the judges hearing petitions challenging the constitutional validity of the Aadhaar Act was a different, and perhaps avoidable, one. Justice DY Chandrachud said that the mere possibility of misuse of law is no reason to declare it unconstitutional. It showed the judge's opinion on the basic issue before the court, arrived at perhaps without considering all other issues involved in the case. The court's ruling will certainly depend on the views of other judges also on the five-judge constitution bench, but the comment gave the impression that one judge had already made up his mind.
In the case of Aadhaar, it is not just the fear or potential for misuse of the law that has to be reckoned with. It is already being put to many uses which are not envisaged in the legislation, and some of these uses may not align with or may violate the rights granted to citizens by the Constitution. Aadhaar was originally conceived of as a marker of identity which would help the government to identify the right beneficiaries of government schemes and to direct the benefits to them. But it is now being used for many other purposes through linkage to PAN cards, bank accounts, mobile phone numbers, etc. The Supreme Court's direction that Aadhaar should not be made mandatory for availing services has not been followed in many cases. There have been instances of denial of facilities and services to citizens for want of an Aadhaar number. Cases of unauthorised use by private players and easy access to Aadhaar data have come to light.
The court will have to take into consideration all these when it makes a decision on Aadhaar. Justice Chandrachud said that the court could strike down a law only if the legislature enacted one which it was not allowed to within the constraints of the Constitution. This may be taking a limited view of the validity of a law. The court should take a wider and comprehensive view of the claimed uses of Aadhaar and its expanding scope, and judge whether what the state demands through it from the citizens is in agreement with the rights the Constitution gives them. Past judicial views on the misuse of laws may not be entirely applicable to the Aadhaar law.