The mere possibility of misuse cannot be a ground for striking down the Aadhaar Act, Justice D.Y. Chandrachud orally observed during a Constitution Bench hearing on the validity of the unique identity scheme on Tuesday.
“There has been a long list of judgments holding that a mere possibility of misuse will not lead to the striking down of legislation. We have a little bit of a problem with that line of your argument,” Justice Chandrachud, a member of the five-judge Bench led by Chief Justice of India Dipak Misra, told the Aadhaar petitioners. To this, senior advocate Kapil Sibal said misuse has ceased to be a “possibility.”
“Misuse is happening. Misuse exists. Personal data is already out in the public domain. Once a genie is out of the bottle, it cannot be put back... So, if there is a consistent line of judgments, treat Aadhaar as an exception,” Mr. Sibal, who opened his submissions for petitioners Raghav Tankha and former IAS officer M.G. Devasahayam, submitted.
Justice A.K. Sikri, on the Bench, at one point, observed that if the government wanted information about a person it could access it even without the help of Aadhaar. “No, you cannot. The government needs a court order,” Mr. Sibal reacted. Justice Sikri responded that “surely there were other ways...”
“On that, less said the better,” Mr. Sibal answered.
Noting that information is power in the digital world, Mr. Sibal said the “Right to Information Act of 2005 made the citizen more powerful, but the Aadhaar Act wants to make the state more powerful.”
Justice Chandrachud said the apex court had already acknowledged the availability of personal data in the public domain in its privacy judgment. Even consent given to private entities is only “notionally consensual”, Justice Chandrachud observed. It was thus that the court had called for a strong data protection regime in order to arm citizens against data breaches by both the state and private entities.
Referring to the governmen’s decision to introduce Aadhaar-bank account linkage through the Prevention of Money Laundering Act (PMLA), Justice Chandrachud drew Mr. Sibal’s attention to Section 57 of the Aadhaar Act, 2016 to show that the Aadhaar number could be used to “establish the identity of an individual for any purpose, whether by the state or any body corporate or person, pursuant to any law for the time being in force.”
“Can’t the state seek Aadhaar under the PMLA or any other Act, provided the request seeks to achieve the objective of the particular Act?” Justice Chandrachud asked.
“So how will just an Aadhaar number tell you if a person is a terrorist or a money launderer?” Mr. Sibal countered.
Justice Sikri agreed, saying the presumption that the state tries to introduce is that “anybody can be a money launderer and hence you first show your Aadhaar.”
“Yes. Everybody is a money launderer until she shows her Aadhaar card,” Mr. Sibal said.
He argued that at the heart of the Aadhaar issue is the “right to choice”, a fundamental right under Article 21 of the Constitution.
“But the state tells me that in order to get a certain service I am entitled to, I have to get Aadhaar. The state says I have no other choice. If I am a Scheduled Caste or Scheduled Tribe community member, my caste certificate or my ration card or BPL card will not establish my identity. Only an Aadhaar card will do. The state can regulate me, but it cannot deny me,” he submitted. “My status gives me the right to my entitlement. My identity has nothing to do with my entitlement. So how can there be a condition in law to deny me my rightful entitlement because my identity cannot be established except by Aadhaar? Is this procedurally and substantitvely reasonable,” Mr. Sibal asked.
He said the government has justified that it saved many thousands of crores through Aadhaar. “Let them save a ₹100,000 crore... the issue here is why do you impose a condition to give me what I am already entitled to?” Mr. Sibal asked.
Justice Chandrachud agreed that Section 7 of the 2016 Act only required Aadhaar for services, benefits and subsidies for which funds were drawn from the Consolidated Fund of India.
“Aadhaar cannot be connected to a universe of other things other than services, subsidies and benefits which has a nexus to the Consolidated Fund,” Justice Chandrachud observed.
