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Constitutional validity of Aadhaar: the arguments in Supreme Court so far

A girl waits for her turn to enrol for Aadhaar at a registration centre in New Delhi.   | Photo Credit: Reuters

After the Supreme Court decided to take up together the 27 writ petitions challenging the constitutional validity of the Aadhaar scheme, a five-judge Constitution Bench comprising Chief Justice Dipak Misra, Justices D.Y. Chandrachud, A.K. Sikri, A.M. Khanwilkar and Ashok Bhushan began hearing arguments on both sides. It has been seven years since the first challenges to the unique identity project were mounted.

This batch of cases is directed at the constitutional validity of the Aadhaar Act, 2016; the Aadhaar project from 2009 to 2016; parts of the project which are not covered by the Act; authorities’ attempts to make Aadhaar compulsory when not defined by the law; the government’s push to link Aadhaar numbers with SIM cards, bank accounts and PANs; and the move to make Aadhaar mandatory for availing benefits and subsidies.

Petitioners submitted to the Court that multiple data breaches from government portals have increased Aadhaar's status as a "universal unique identifier."

Here is a summation of the recent arguments:.

January 17, 2018:

- Counsel for the petitioners Shyam Divan said the project seeks to tether citizens to an electronic leash. “This leash is connected to a central database that is designed to track transactions across the life of the citizen. This record will enable the State to profile citizens, track their movements, assess their habits and silently influence their behaviour. Over time, the profiling enables the State to stifle dissent and influence political decision making.”

- In his opening statement, Mr. Divan said, “The petitioners are certain that if the Aadhaar Act and programme is allowed to operate unimpeded it will hollow out the Constitution, particularly the great rights and liberties it assures to citizens.”

- “There was no free consent. There was no ‘opt-out’ option. Can the state’s right of eminent domain extend to the human body? Can the state encroach on personal body autonomy?” Mr. Divan asked.

- Chief Justice Misra raised the question of the court's power to judicially review the 2016 law which was passed as a Money Bill. “Once the Speaker says it is a Money Bill, the court should not question the wisdom of the Speaker,” Chief Justice Misra said. Senior advocate P. Chidambaram, appearing for Congress MP Jairam Ramesh, replied: “Only Members cannot question it. The power of judicial review is not taken away. The Speaker cannot certify anything as a Money Bill.”

January 18, 2018:

- “The state is empowered with a ‘switch’ by which it can cause the civil death of an individual. Where every basic facility is linked to Aadhaar and one cannot live in society without an Aadhaar number, the switching off of Aadhaar completely destroys the individual,” submitted Mr. Divan.

- When Justice A.M. Khanwilkar observed that the Aadhaar Act of 2016 would protect fundamental rights, Mr. Divan responded that crores of citizens had already been enrolled between 2009 and 2016, when the Act came into existence, and fundamental rights could not be protected retrospectively.

- Mr. Divan said there was no audit check of private collection agents to whom the UIDAI had outsourced the work of personal data collection for years prior to the Act.

January 23, 2018:

- The Supreme Court questioned the petitioner’s contention that collection of personal information under the unique identity project could lead to totalitarianism.

- Justice Chandrachud said that an individual should not have an objection to the state using their personal data to check if the person had paid their taxes. Senior advocate Kapil Sibal responded that citizens did not know how their personal information was being used by the government.

- Justice Chandrachud also compared the Aadhaar project to Google Maps, stating that an individual accepts the fact that a satellite tracks them. Mr Divan submitted that Google is not the Indian state, and pointed out the difference between giving consent to an entity and being compelled to share data.

- “All our data is anyway with private entities. So does the interpolation of Aadhaar number make any difference?” Justice Chandrachud asked. Mr. Sibal stated that the court needed to decide the extent to which the state can seek personal information.

- “Yes, we are in a networked world. We have to share information. But to what extent in the networked world should the state seek information, that too, not under many umbrellas but under one. To what extent should private entities be given personal data and to what extent do we protect ourselves?” Mr. Sibal said.

- “Let us say Aadhaar is per se constitutionally valid. Then we have to decide how far Aadhaar can be used. Should Aadhaar be used only to access subsidies? Is there a constitutional line that should not be infringed. A line when crossed would become violation of privacy,” Justice Sikri observed.

- But Mr. Divan said there should be other alternatives to Aadhaar and a person’s very existence should not hinge on just one source. He said a situation had arisen wherein a person ceased to exist and became a ghost, if his biometrics did not match.

February 1, 2018:

- Mahatma Gandhi’s public speech against the fingerprinting and profiling of Indians in South Africa was quoted by the petitioners against the Aadhaar scheme as a case of profiling of free citizens by the state.

- Mr. Sibal remarked that the government through Aadhaar was imposing a “one nation one identity” norm on free citizens. But Justice Sikri said the problem was the population of the country and a certain lack of integrity leading to duplication of identity records and fraud.

- The UIDAI completely disregarded statutory norms established by the Identification of Prisoners Act, 1920, the Bombay Habitual Offenders Act, 1959 and the Registration Act, 1908 (as amended in 2001), which all contained specific statutory sanction for limited purpose collection of finger prints, palm prints, etc. It ignored the Parliamentary Standing Committee Report of December 13, 2011 pointing out to the National Identification Authority of India Bill, 2010 (virtually identical to the present Bill/Act) as a colourable exercise of power, Mr. Divan argued.

February 6, 2018:

- Justice Chandrachud orally observed that the possibility of misuse cannot be grounds for striking down a law. “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,” said Justice Chandrachud.

- Mr. Sibal countered that misuse is no longer just a possibility and that personal data is already out in the public domain.

- Justice Sikri mused that if a government wanted information on a person it can be accessed, to which Mr. Sibal said that the government needed a court order to do so.

- Referring to the government'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 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.”

- Mr. Sibal argued that the essence of the issue was the right to choose, a fundamental right under Article 21 of the Constitution.

- Justice Chandrachud then said that Aadhaar cannot be connected to “a universe of other things other than services, subsidies and benefits which has a nexus to the Consolidated Fund.”

February 7, 2018:

- Justice Ashok Bhushan said he found nothing wrong with “one identity, one nation.” To this, Mr. Sibal submitted that the “one-nation-one-identity” principle floated through the Aadhaar scheme left no room for alternative government-approved documents to establish a person's identity. Aadhaar becomes the sole record by which a person can establish his identity, or he runs the risk of a “civil death.”

- Justice Sikri intervened to clarify that Mr. Sibal meant that a person’s identity as an Indian should not be limited to the possession of an Aadhaar card.

- Mr. Sibal read out from a staff paper published by the Reserve Bank of India's Institute for Development and Research in Banking Technology that the Aadhaar central database or the Central ID Repository (CIDR), where the biometric details are stored, may become the “single target” and “single point of failure” for internal and foreign attacks.

February 8, 2018:

- The Court asked the government and the UIDAI if it is not their obligation to ensure that ordinary people, especially pensioners and the marginalised sections of the community, are not denied their benefits till an “adequate mechanism” for authentication of identity under the Aadhaar Act is put in place.

- Senior advocate Rakesh Dwivedi, appearing for the UIDAI, articulated, “Nobody is being excluded. It is enough to furnish proof of Aadhaar number wherever infrastructure is not functioning. Anybody who produces his Aadhaar card is given his entitlements. That is what the government wants.”

- To this Justice Sikri reminded the government of those who are illiterate and the government’s duty to take care of them. Mr. Sibal then said that while it is well for the government to say that they will take care of everything, it ultimately falls to the Supreme Court to protect the rights of the people.

February 13, 2018:

- Justice Chandrachud said that Aadhaar can serve as proof of identity for every Indian who does not possess one. Mr. Sibal responded, “If you have no proof of identity, you cannot get Aadhaar in the first place. The intent of the Aadhaar Act is not to give anyone the benefit of an identity. The Act is a mechanism to authenticate identities. And even then, why should the authentication of identity be linked to biometrics?”

- Justice Sikri, speaking on the government’s rationale for the use of biometrics, said: “With other identity documents open to duplicity, let us have at least one identity with biometrics.”

- Chief Justice Misra stepped in to interpret Mr. Sibal’s submissions. “If I have understood you right, you are trying to say that any restraint on a fundamental right must be within the constitutional framework. You are saying that to get the benefit of a fundamental right, no statute can ask you to surrender or barter another fundamental right.”

February 21, 2018:

- Mere absence of a law can be cured by subsequently enacting one with a retroactive effect, but this new law cannot cure “breaches” that occurred prior to it, Justice Chandrachud observed orally during a Constitution Bench hearing in the Aadhaar challenge.

- He said the abrogation of fundamental rights which occurred during the collection of personal information during the pre-Aadhaar Act years was a “choate act” in itself.

- “There was no voluntariness on the part of the citizen in its true sense, all the purposes for the collection and use of the personal information was not conveyed to him, the information was open to be shared among other entities, including private parties. All this made the collection of data unlawful,” advocate Gopal Subramanium argued.

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“The enactment of 2016 cannot cure the breaches that happened prior to it,” Justice Chandrachud observed.

February 22, 2018:

- Senior advocate Rakesh Dwivedi, for UIDAI, submitted before the Constitution Bench that biometrics are now only stored in the Aadhaar central database or the Central ID Repository (CIDR).

- Petitioners sought an extension of the deadline for Aadhaar linkage from March 31. Mr. Subramanium and Mr. Divan said appropriate interim orders to extend the deadline, considering the fact that the Supreme Court is still hearing the question of Aadhaar validity, should be passed in order to avoid “last-minute scramble.”

March 3, 2018:

- The Lok Sabha Speaker’s decision to declare Aadhaar Bill as a Money Bill attains finality only as far as parliamentarians are concerned and does not prevent the Supreme Court from judicially reviewing the Speaker’s wisdom, senior advocate P. Chidambaram argued the Bench.

- “The decision of the Speaker is only final regarding that institution (Parliament) and not for a court review,” he pointed out.

March 13, 2018:

-  Supreme Court indefinitely extended the deadline for linking Aadhaar with services like mobile phones, tatkaal passports and bank accounts from March 31, 2018 till the five-judge Constitution Bench led by Chief Justice of India Dipak Misra pronounces its final verdict on the validity of the Aadhaar scheme.

- “We are dealing with the entire financial system… We cannot let this state of uncertainty prevail… We cannot tell them, like on March 27, whether the deadline is extended or not… A banker cannot be expected to seek compliance from customers within seven days,” Justice Chandrachud addressed Attorney-General K.K. Venugopal during a hearing on March 7.


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