On 18.1.2018, the 5 Judge bench of the Supreme Court comprising Chief Justice Dipak Misra, Justices A.M. Khanwilkar, D.Y. Chandrachud, A.K. Sikri and Ashok Bhushan continued with the hearings in this case.
On the first day of arguments in this case, Mr. Shyam Divan representing the petitioners, made broad arguments against the Aadhaar programme as well as the Act. He argued that the architecture did not have adequate safeguards for data security and gave several instances of the programme being carried out in violation of the past court orders.
Mr. Divan began the 2nd day’s arguments by drawing a distinction between deterministic and probabilistic methods of identification. He presented diagrams outlining the enrollment and authentication processes and submitted that the low-quality machine used at the time of authentication had led to the exclusion of genuine beneficiaries. Justice Chandrachud observed that authentication might not work for manual labourers and aged people and Mr. Divan agreed.
Mr Divan then submitted that the fundamental rights challenge to Aadhar programme could be made on three counts – privacy, autonomy and compelled speech. Justice Chandrachud enquired if the petitioners would object to the Programme if information gathered was used for specific purposes? Mr.Divan replied that Aadhaar had been instituted in a manner where information once given could be used for any purpose, with citizens having no control over its usage. He rhetorically enquired if a welfare State could introduce a system where citizens would have rights only if they agreed to submit their biometrics and be tracked for the rest of their lives.
Mr Divan further argued that Aadhaar programme was patently defective as citizens were being compelled to give sensitive information, like phone numbers and bank account numbers, to private entities. Justice Chandrachud enquired if the private entities were acting as agents of the government? Mr. Divan responded that even if the State was acting in a fiduciary capacity, collection of citizens biometric data being a core sovereign function could not be delegated. He referred to past incidents where private enrolment agencies were ready to sell sensitive data for a price. He argued that the sensitive data was being handled by private entities where data operators were required to have minimal qualifications – they were required to be of 18 years and have a 10+2 education.
His drove home this lack of integrity in the whole data collection process, by citing the statement issued by the Rajya Sabha on 10 April 2017, which said that in 6 years, 34000 Aadhaar operators were blacklisted and submitted that the number had risen to 49000 according to recent newspaper reports. Referring to UIDAI, he argued that the authority it had been given to collect biometric data had no legal standing. The 2010 MOU between UIDAI and Delhi Government gave UIDAI the authority to seek biometric data of citizens, but MOUs did not have any legal validity under the Indian Constitution. He concluded that Aadhaar was plagued with a complete lack of integrity from the beginning and this explained the blacklisting of 34,000 Aadhar operators for unethical practices. Responding to Justice Khanwilkar question if statutory cover for Aadhaar validated past evasions, he said that there could be no retrospective validation of the violation of fundamental rights.
Mr Divan then focused his attention on Puttaswamy (right to privacy case). He said that privacy was a fundamental right, so any deprivation of this right must be just, fair and reasonable. He submitted that Puttaswamy made it clear that the right to privacy is grounded on the idea of dignity, which pervades the entire Constitution. He quoted Justice Sotomayor’s opinion in US v Jones, which observed that in these times it was possible to derive a complete profile of an individual’s life from their transaction, and that a physical infringement is not required to violate privacy. He argued that the Aadhaar programme, by collecting citizens’ biometrics, could violate citizens right to privacy. The bench rose for the day and the matter will be heard next on Tuesday (23.01.2018).