Day 10 Arguments: 13th February 2018
On the previous day of arguments (Day 9), Mr. Kapil Sibal had differentiated between Aadhaar as an identifying tool and as an authenticating tool and severely objected to the latter. He also cited various instances of denial of entitlements when certain persons’ identity could not be authenticated using Aadhaar.
Today, Mr Sibal resumed his arguments by discussing a similar national identity scheme in Israel where information could be used only for purposes for which it had been collected. Another way it differed from Aadhaar was that citizens had the choice of not being included in it. In addition, there was a provision for deletion of data after a certain amount of time and the State had not been authorised to collect metadata. Thus, unlike Aadhaar, the Israeli State had taken steps to secure the data and rights of its citizens.
Mr Sibal read out paragraphs 300-304 of the Right to Privacy Judgment and proceeded to make his submissions:
- Information is power: He referred to the acquisition of Whatsapp by Facebook for $19 billion where intangible assets formed 80% of the corporate market value to show that this was because of the power of information. But, he pointed out that in case of private entities that collect data such as Uber, Facebook, and Whatsapp, the information was stored in silos, but in Aadhaar, all the data was stored in a centralised database and that made it dangerous. In silos, information was inconsequential but when centralised it could aid personality mapping. Mr Sibal clarified that he was not against Aadhaar as an identity card but it could not (i) be made public, (ii) be stored in a centralised database and (iii) could not be used to pinpoint individuals.
- The scheme of Aadhaar Act was designed to enable centralisation and aggregation of personal, sensitive information: Mr Sibal submitted that while Section 3 of the Act made Aadhaar voluntary, Sections 4(3) and 8 make authentication necessary. Section 32 of the Act, he submitted, allowed creation and maintenance of a log of authentication, which could not be allowed under the Constitution. Regulation 26 even allowed the storage and archiving of metadata, which would give the State more power in terms of storing and tracking an individual’s data. Section 57 allowed data linked to Aadhaar to be used for purposes other than those specified in the Act. He also argued that the Aadhaar architecture nullified consent by making entitlements contingent on Aadhaar.
- Aggregation and concentration of sensitive and personal data is unconstitutional: Mr Sibal argued that the information gained by the State by virtue of Aadhaar would affect every aspect of an individual’s personal, professional, religious, and private life. This violated Articles 19(1)(a) to 19(1)(g), 21, and 20(3). Aadhaar would become the Right to Information Act for the State, against the individual. Mr Sibal further argued that it failed the constitutional test of proportionality and violated Articles 14 and 21. For it to meet the proportionality test, 1) the policy should be linked to the objective of the legislation, and 2) the means should be the least restrictive way of achieving the objective. The denial of basic entitlements on failure to produce an Aadhaar card violated Fundamental Rights and was a very disproportionate means of ensuring delivery of entitlements. Quoting excerpts from Chairman, All India Railway Recruitment Board vs. K Shyam Kumar (2010) and Modern Dental College And Research Centre v. State of M. P. (2016) he argued that Aadhaar was disproportionate and hence unconstitutional, as imposing a restriction to enjoy constitutional rights amounted to violating the right. Mr Sibal argued that even if the State established compelling interests, it had to show that this was the least restrictive way of achieving the object, and Aadhaar failed in that aspect. Justice Sikri pointed out that the test of proportionality had higher standards in some jurisdictions, such as South Africa, where a Jurist had said that the Constitution was a bridge from a culture of authority to a culture of justification.
- Absence of nexus with subsidies, benefits and services: Mr Sibal argued that the State’s claims of savings due to the Aadhaar were incorrect. He reiterated that the right to receive entitlements related to status, not proof of identity. Many entitlements under the DPSP had been given the status of a Fundamental Right, such as the right to food, health, livelihood, and education. But, the Aadhaar scheme in its current form violated these rights by making them conditional.
- No one should be coerced to part with personal information as a condition for availing benefits: Mr. Sibal assailed the Aadhaar programme on the doctrine of unconstitutional conditions by referring to the principle as set out in Ahmedabad St. Xaviers v Gujarat, Frost and Frost Trucking v. Railroad Comm., and In Re Kerala Education Bill. The doctrine stopped the State from making a benefit conditional upon individuals giving up their rights. In case of Aadhaar, making essential benefits contingent upon giving up their rights would place individuals between “a rock and a whirlpool”. Justice Chandrachud wondered that if the State was giving benefits then could it not prescribe a mechanism for establishing the identity of the person who was receiving it. Mr. Sibal replied that if there were multiple ways of proving one’s identity, then the State could not force a person to establish it using only an Aadhaar card. The CJI clarified that Mr. Sibal’s submission was that one fundamental right could not be surrendered to access another. Mr. Sibal agreed with his observation. Justice Chandrachud enquired if his argument was that restricting the choice of identity to one violated fundamental rights, and Mr Sibal answered in affirmative. Justice Chandrachud asked if the government could make one identity compulsory for those who had none. Mr. Sibal replied that the government could prescribe a method by which they could acquire identity but could not make one identity compulsory. He quoted Julius Caesar by stating “Aadhaar is a colossus, and we are underlings.” and reiterated that citizens must have a choice in how they wanted to establish their identity through a reasonable manner prescribed by law. To drive his point home, he read out notifications that made Aadhaar compulsory for bonded labour rehabilitation schemes and child labour welfare schemes, which was a direct denial of their fundamental rights
Mr. Sibal concluded his arguments by stating that this was the most impactful case since ADM Jabalpur, as the choice of the State to either let its’ citizens have free choice or decide that it was the arbiter of choice would decide the course that the country took with respect to protecting fundamental rights.
Thereafter, Mr. Gopal Subramanium, representing the petitioners, began his arguments. He said that Aadhaar violated the core idea of dignity underlying the right to privacy. The Aadhaar bypassed and violated fundamental rights and this could not be allowed except in a state of emergency. By requiring continuous authentication, Aadhaar was prioritising a digital person over the real person. Aadhaar violated Article 14 of the Constitution, as denial of benefits would be decided by a computer or an algorithm instead of a person. The society needed accountability, but Aadhaar, not only struck down this accountability and disintermediated the state, but also enabled aggregation of data which ran counter to mobilisation. CJI Dipak Misra paraphrased Mr. Subramanium’s argument: Aadhaar makes a person an “un-person”.
The bench thereafter rose for the day and the matter will be next heard on 15.02.2018.