On the 6th day of arguments, Mr Shyam Divan presented arguments based on ideas of constitutionalism, limited government and rule of law. Before the bench rose for the day, he began to read from affidavits of the Right to Food Campaign’s on-field reporters which contain instances where beneficiaries were prevented from availing their entitlements as the biometrics-based authentication had failed, leading to their death.
Today, Mr S Divan continued to read from those affidavits, pointing out that these instances showed exclusion, death, loss of dignity and an absence of an alternative way of identifying oneself – all of which violated Article 21 of the Constitution. Justice Chadrachud pointed out that one must also look at the lack of internet permeability, to which Mr Divan agreed and added that the authenticating machines had a ‘memory’ which stored the fingerprints so the authentication could be carried out at a later time in a place with an internet facility. The bench unanimously pointed out the potential for misuse in such a scenario.
Mr Divan then argued that as a person’s biometric data was taken – without her consent – and then used against her to exclude her from benefits went against Articles 14, 19, and 21. He added the following dimensions of this argument:
Mr. Divan concluded his arguments with the following statements:
Mr Kapil Sibal, who was representing one of the Petitioners, began his arguments after lunch. He began by laying out the enormity of the matter and its implications for the consideration of the Court. He laid down the following propositions before the bench:
Mr Sibal proceeded to first analyse the Aadhaar Act, 2016. Before he began, Justice Chandrachud asked for clarification on how the Aadhaar Act made it an obligation to have an Aadhaar card, given that Section 3 made it an entitlement, to which Mr Sibal responded that Section 7 made it mandatory. He went on to read the definitions of ‘subsidy’, ‘benefit’ and ‘service’ in the Aadhaar Act to and pointed out that they were related to the Consolidated Fund of India. He then pointed out that banks and mobile companies asking for Aadhaar authentication went against this, and also made the consent under Section 8 illusory. He went on to add that the CIDR (Central Identities Data Repository) was controlled by a foreign entity, which had the Respondents shaking their heads indicating this was not the case. Justice Chadrachud then asked who the ‘requesting entity’ could be, to which Mr Sibal submitted that under Section 2(u) read with Schedule A of the Regulations, anyone could become a requesting entity and thus access the data.
Justice Chadrachud then read out Section 8(3)(c) which provided for ” alternatives to submission of identity information to the requesting entity”, thus indicating that alternatives could be provided. Mr Sibal argued that the alternative was with respect to getting identity information (i.e. either Aadhaar number, or biometric information or demographic information). The Bench disagreed with this interpretation, stating that in that case the section would have been worded differently.
Mr. Sibal then stated that the Regulations which enabled the storing of data and metadata suggested that the State presumed every citizen was a money launderer or terrorist. He pointed out that after six months even the individual lost his right to access his information, but it was archived and usable by the State. He noted how the US was circumventing the fourth amendment by asking data from Google, and when asked by Justice Sikri what could stop the State from going to Google for the data, Mr Sibal responded that the check was that this was allowed only after a Court order. Moreover, one had the choice of not being on Google, Facebook, and Twitter. In fact, Google used an individual’s data to provide the person with more choices, whereas the Aadhaar was taking away a person’s choices.
Mr Sibal then moved on to discuss the power of the state to deactivate someone’s Aadhaar, pointing to Regulations which allowed such deactivation for “any other reason deemed appropriate.” Justice Chandrachud pointed out that the validity of an Act could not be judged by the potential for its abuse. Moreover, the constitutionality of a law had to be judged on a generality of cases and not on exceptions. He further asked how could the Court ensure a technologically safe environment? Mr Sibal responded that in the digital information age, there was not merely a “possibility” or a “potential for” misuse any more, but a real vulnerability. He thus prayed the Court to come up with a new set of principles to deal with digital issues.
The matter will next be heard on 07.02.2018.