Continuing his arguments from Day 11, Mr Gopal Subramanium began by noting that the Court reiterated the constitutional protection to human dignity in Jeeja Ghosh v. Union of India and emphasised that “To live is to live with dignity”. He began his arguments with the Sanskrit shloka “Yato Dharmastato Jaya” inscribed on the Supreme Court emblem, which translates to “where there is justice there is victory” and submitted that the Aadhaar Act went against the principle of justice by subjecting the entire population of the country to the assumption of impersonation. Malfeasance and impersonation, which the Aadhaar Act purports to rectify, are individual and specific actions which cannot be aggregated to force everyone to submit intimate personal data. As Kumari Madhuri Patil vs. Additional Commissioner, and the jurisprudence that followed it had held, the right to appeal could not be allowed to be whittled away. State of Haryana vs. Suman Enterprises had held that the state bore the insignia of rectitude and probity. Mr Subramanium said that the Aadhaar Act did not allow amenability and foster accountability and hence was unconstitutional.
At this point, Justice Chandrachud pointed out that there was a difference in the concept of identity and identification. The Constitution allowed identity. Citizenship, for instance, was a political identity. Aadhaar, on the other hand, facilitated identification. Whether the process of identification impinged on the process of identity was to be seen. Justice Sikri also pointed out that Mr Kapil Sibal had, in the course of his arguments, said that he had no objection to the identification, but was opposed to the manner in which it was carried and the of aggregation of data.
Mr Subramanium responded that he was taking a doctrinal position. Identity was allowed in the Constitution, but identification was extraneous to it. Minimal identification was permissible but not for the purpose of realising an individual’s rights. Moreover, as the Aadhaar program was not being run by humans but through an algorithm, there was a high chance of exclusion. He submitted that if life was central to the Constitution, then subjecting it to identification in such mass scale was wrong. Referring to Sheela Barse and Manoj Narula, he argued that the Aadhaar Act, by allowing the convergence and homogenisation of a society made of diverse groups of individuals, objectified and depersonalised individuals. Even the ECHR discouraged aggregation of personal data as it violated privacy.
Mr Subramanium touched upon the history of this idea of identification – it began as a means of identifying persons at the border after the Kargil War, per the Subrahmanyam Committee. However, this idea had now changed with the ‘Unique Identification’ envisaged by the Aadhaar, which was a paradox, as the State could not declare the uniqueness of an individual. The onus of identification was on the State and not the individual. He assailed the constitutionality of the Aadhaar scheme, claiming that it impinged on all actions of the individual and had the attribute of indignity by making a moral judgment on the people. The Act had also rendered the role of District Magistrates redundant, which was one of the existing mechanisms to keep malfeasance in check.
Mr Subramanium asserted that not only was Aadhaar moralistic and judgemental but it was also opaque – and opacity was antagonistic to rationality. The Act could not abrogate constitutional rights to further economic aims. The Act could not torpedo special provisions made for children, women, and disadvantaged sections of the society. At this juncture, Justice Chandrachud interjected to point out that the expectation of the right to privacy must be reasonable, as we lived in a society. Mr Subramanium agreed and asserted that the Aadhaar Act must satisfy the reasonable tests.
Mr Subramanium then proceeded with his arguments on Informational Privacy. Referring to the German Constitutional Court decisions in Microcensus and Census, he submitted that aggregation of data violated the right to personality. Even if it was passed with the best of intentions, the Act had the propensity to emasculate rights. Such encroachment had to be justified in an existing law, and the aims of and means used had to be legitimate. He did not refute the fact that appropriate persons should be given their rightful entitlements but stated that an “across the board” solution like the Aadhaar Act was not the answer.
Mr. Subramanium, through the Puttaswamy judgment, emphasised the dangers of State and Non-State data collection and retention. Ubiquitous data surveillance, he argued, was the intent and object of the Aadhaar Act. The ‘data mining’ capability embedded in the algorithm made it capable of profiling individuals and made the Aadhaar Act unconstitutional.
Mr Subramnium began to analyse Section 59 of the Aadhaar Act, which validated the actions prior to 2016. He argued that a retrospective validation of actions infringing Fundamental rights is unconstitutional. Justice Chandrachud posed two aspects of Section 59– one, the absence of law aimed to be cured, and second, breach of data collected between 2009 and 2016. He pointed out that the plenary power of the legislature did allow retrospective application. Mr Subramanium agreed to the plenary powers of the legislature but submitted that this power did not allow an abrogation of fundamental rights. Data collection that was predicated on not initially seeking consent, and enabling data sharing with corporate bodies amounted to a complete invasion of fundamental rights – defacto and dejure – which no law could retrospectively cure. Moreover, there was no substantive or procedural reasonableness in the actions that were carried out prior to 2016, which violated Article 14. Justice Chandrachud pointed out that there might be an instance where a fundamental right might be violated by a retrospective law and yet be valid – for instance if the legislature passed a statute to outlaw a certain outfit retrospectively, even though Article 19 of that outfit was violated, it might be valid. Mr Subramanium agreed but clarified that the deficiency in Aadhaar Act was not merely the absence of law, but the consequent invasion of rights in the absence of a law.
To elaborate on how the Aadhaar Act violated federalism, Mr Subramanium referred to the Proviso to Article 73(1) of the Constitution- which said that the exclusive executive power of Parliament would only extend to the Union list. He listed Entries, 20, 23, and 24 of the Concurrent list to show that Aadhaar fell under the Concurrent list. Therefore, he argued, the Centre had no authority to operate under an executive scheme. Justice Chandrachud remarked that Aadhaar might fall under entry 97, thus falling within the legislative domain of the Centre.
Mr Subramanium also argued that the Act violated federalism as it rendered ineffective Part IX of the Constitution which established the Panchayats and Local bodies. Justice Sikri noted that the Act worked for the implementation of social sector schemes, to which Mr Subramnium responded that Part IX sought to empower effectuation of these schemes, and previous identification process was carried out through the functionaries established under Part IX. However, today, the State was exercising executive powers to the exclusion of these constitutional bodies and functionaries, through the Aadhaar Act.
The bench kept going back to Mr Subramium’s argument on the invalidity of Section 59. Chief Justice Dipak Misra suggested that the Section could also be seen to validate the (alleged) data breaches that might have happened between 2009 and 2016, asking if Mr Subramanium was suggesting that all the data collected be destroyed. Mr Subramnium agreed with this suggestion, pointing out that such an exercise has been carried out in Germany and the UK.
At this point, Justice Chandrachud enquired if prior to 2016 there was any provision like Section 57 to bring States on board? Mr Subramanium said there was no such provision, and that UIDAI had only entered into MOUs to establish State Resident Data Hubs. He added that Section 57 enabled corporations and private parties to use Aadhaar data, enabling an ecosystem to use data in a way which had never been the aim under Aadhaar. Justice Ashok Bhushan enquired if Section 59 saved the MOUs with SRDHs also, Mr Subramanium replied that the section saved everything done by the Central Government.
Mr. Subramanium closed for the day by stating that there was a need for horizontal protection of rights. The heart of Aadhaar was authentication, and if authentication failed, then the consequence was exclusion and isolation. False rejects sealed an individual’s fate. As there was no provision to redress the grievance or for the retrieval of core biometric data under the Act, the citizens would be left without no access to remedial action.
Mr. Subramanium will be resuming his arguments tomorrow (22.2.2018).