In September 2018, the Supreme Court of India rendered its verdict in a landmark case with major implications for the Aadhaar biometric identification project as well as the application of right to privacy in India, but the Aadhaar Matter raises important questions about the shortcomings of the Supreme Court’s practice of judicial review. I had written a paper for IFRI after the hearings in the case had concluded on the lack of rigour in processes for the Supreme Court to apply its mind to questions of facts, and how important it was to the Aadhaar matter. The paper. now published, can be accessed here.
In this paper, I examine the role of the higher judiciary in the short history of the Aadhaar project. I attempt to dissect the nature of the judicial review that the Supreme Court of India has exercised with regard to this project, what tools are at the disposal of the judiciary to examine judicial challenges of this nature, and how they have been used. I argue that the nature of Public Interest Litigations (PIL) in India puts the higher judiciary in a peculiar position of being the court of first instance as well as the final court of appeals, thus requiring it to look into questions of fact as well as law, without the tools that a trial court has at its disposal. The effect of this oddity is especially pronounced in cases such as the Aadhaar Matter, which involves several complicated questions of fact. This paper was written before the Supreme Court passed its judgment in the Aadhaar Matter and its analysis is based on public reporting of hearings in the court.