Day 1 Arguments

Constitutionality of Aadhaar Act

January 17th 2018

On 17.1.2018, the 5-Judge bench of the Supreme Court comprising CJI Dipak Misra, A.M. Khanwilkar, D.Y. Chandrachud, A.K. Sikri and Ashok Bhushan JJ began hearings in this case. There are 27 petitions which have challenged various facets of the Aadhaar regime and this case will decide the constitutionality of each of these facets.

Senior Counsel Shyam Divan representing the petitioners began arguments. He started by laying out the contours of the challenge. He submitted that he would first challenge the Aadhaar project in its entirety, then the Aadhaar Act specifically, followed by notifications and regulations related to the Act. Mr. Divan submitted that if the project was allowed to continue unimpeded, then it would hollow out the Constitution. He continued, that for the first time inalienable and natural rights have been made dependent upon the compulsory acquisition of an Identification i.e., Aadhaar number. He submitted that Aadhaar has led to profiling of citizens which would lead to the creation of a Surveillance state.

He argued that by making Aadhaar compulsory for 138 services, the State had violated multiple Supreme Court orders which held that until the matter was decided no person was to be deprived of any service for not having Aadhaar. Reading the list of services for which this form of identification had been made compulsory, he submitted that one could not live as a citizen today without having this card. Questioning the declaration of Aadhaar being a sure shot identification tool, he argued that this was not based on a deterministic identity system but on a probabilistic system. He added that making citizen rights and entitlements contingent on a probabilistic system which was error prone was wrong.

Mr. Divan enquired rhetorically if UIDAI could continue collecting biometrics now that privacy had been recognised as a Fundamental Right and the charter, roles and responsibilities of UIDAI for protecting data were so inadequate.

Sikri J enquired if the result of declaring the Act illegal would be destruction of the database, to which Mr. Divan replied in the affirmative. Mr. Divan argued that the Aadhaar architecture allowed the State to create an electronic trail of its citizens’ actions, and the issue was not whether the State was actually electronic tracking persons but that the architecture made it possible. He submitted that Aadhaar had inverted the citizen-state relationship by turning State into a totalitarian and not limited entity. Chandrachud J observed that electronic trailing could be addressed by restricting data use to the specific purpose for which it was collected.

Chandrachud J observed that as fictitious people were getting subsidies and benefits, there was legitimate State interest in having a uniform identification tool like Aadhaar. Mr Divan responded that even if the state’s interest was legitimate, the purpose of the identification had to be narrowly tailored and counterbalanced with other factors like possible infringement of fundamental rights, and currently it made cradle to grave surveillance possible over citizens.

Mr. Divan quoted the Standing Committee Report of 2010 which had reservations about the Aadhaar Bill and regime. The Standing Committee had expressed concern over the issues of security and data theft. He alluded to the UK revoking its biometric database owing to the possibility of data theft. Mr. Divan ended the day’s submission by pointing out the exclusionary nature of the regime where biometrics of 6.2 crore citizens were rejected.  He said that making Aadhaar, an error-prone identification tool, compulsory had large exclusionary costs for genuine beneficiaries. The bench rose for the day and Mr. Divan will continue on 18.01.2018.

(The post relies on court reporting by Mr. Ayush Puri)