Day 20 Arguments

Constitutionality of Aadhaar Act

March 21st 2018

The Attorney General of India Mr. KK Venugopal began his arguments by saying that this case has many technical aspects such as security, storage of information, and prevention of data leaks. He said that the State has put in an enormous effort to ensure security. Sixty committees have been setup on this issue, since 2006, which have also examined alternatives to the Aadhaar (such as a smart card). Serious efforts have been made to insulate deserving beneficiaries from the effects of corruption. He argued that many countries have adopted a unique identification system. The World Bank has looked into these in its report called Identification for Development, where it has also referred to Aadhaar.


Mr. Venugopal said that over the course of his arguments, he would be explaining how data security has been ensured at every step – from enrollment to storage of the data on the CIDR. He offered that the CEO of the UIDAI could make a technical presentation for the Court.


At this point the CJI asked Mr. Venugopal to first present his legal arguments. The CJI pointed out specifically to the legal issues raised by the Petitioners on privacy, anonymity, dignity, surveillance, aggregation, presumptive criminality, unconstitutional conditions, the absence of a law, and security. Mr. Venugopal responded that many of these issues would be clarified by the presentation. He also informed the Court of a four-minute video showing the “thirteen foot wall” around the CIDR. Chandrachud J pointed out that the petitioners had also begun their arguments with a factual superstructure, so the Mr. Venugopal’s request might be fair. The CJI kept the option open.


Mr. Venugopal next stated that the core effort of the Aadhaar Act is to save money spent (by the Government) to bridge the gap between rich and poor. After Independence, poverty was at 66% and illiteracy was at 87%. Currently, both were at 27%. But, in absolute terms, it was still a high number. Massive corruption resulted in the siphoning off more than Rs. 1000 Crore by middlemen and public servants. Something had to be done, so the Aadhaar Act was framed. He argued that the Aadhaar Architecture takes into account every fear regarding the possible invasion of privacy. The Court had ordered that Aadhaar be voluntary. Mr. Venugopal questioned how something that is voluntary can violate fundamental rights. The right to life is not a right to a mere animal existence, but a right to live with dignity. Here, Sikri J pointed out that it was interesting to see that both sides were invoking the right to dignity. He also found the question of a clash between two rights – such as right to privacy and right to life – interesting.


The CJI interjected to say that Mr. Venugopal’s argument seemed to be that the individual right to privacy must give way to the right to distributive justice. Mr. Venugopal expanded on it, saying that in India the poor are invisible, upon which Sikri J asked him to deal with this argument in the context of exclusion. Mr. Venugopal responded that a lot of NGOs have claimed presence of exclusion, but the Court has not heard from any affected person. Chandrachud J interjected to say that individual rights are not subordinate to distributive justice and gave the example of the Bengal Famine, (based on Amartya Sen’s argument that famines don’t occur in democracies because of more free flow of information). Mr. Venugopal questioned what happened to the fundamental rights of poor people, such as the right to exist without hunger. Would their right against lying on the pavement prevail over the right to privacy? Bhushan J pointed out that the poor have an equal right to privacy, their rights could not be violated any more than the rights of the rich. Mr. Venugopal contended that this is a question of balancing rights, and not a question of violation of rights.


He reiterated that there could be no question of violation of fundamental rights before 2016, as Aadhaar was voluntary at that time. At this point, Chandrachud J clarified that the issue is not so simple. When people agreed to obtain an Aadhaar card/number, they did not accept a surrender of their data or its commercialisation. Moreover, there were no safeguards. Mr. Venugopal responded that the poor beneficiaries between 2009 and 2016 have not complained. Sikri J pointed out that the issue is not limited to that class of people (i.e. beneficiaries under Section 7). Mr. Venugopal replied that he will deal with the issue of bank accounts, income tax, and phones separately. He reiterated his submission about balancing of rights.


Mr. Venugopal called the Aadhaar an ‘enabler’ for millions. It enables their right to food, livelihood, and pensions. He argued that a handful of petitioners wanted it to be struck down on grounds of privacy. However, the object of the Act is the targeted delivery of benefits to genuine beneficiaries. This is in deference to the Article 21 right of the poor and seeks to advance the Directive Principles of State Policy. He read out excerpts from the statement of objectives and reasons of the Aadhaar Act, various reports on inclusiveness and the right to food, and the Supreme Court Judgment on the Right to Food (PUCL v. Union of India), to further his argument on balancing rights. He read out the portions where the Right to food case had made specific references to the DP Wadhwa Report and recommended computerisation of PDS. The Court had asked Mr. Nandan Nilekani to suggest ways of computerising the PDS, who then conceptualised the UIDAI.


Post lunch, Mr. Venugopal said that Section 12 of the National Food Security Act envisages the use of Aadhaar for better targeting, automating the system, and unique identification. He then read out excerpts from Binoy Viswam v. Union of India to say that the objectives of Aadhaar had been endorsed by the bench comprising Sikri and Bhushan JJ. The judgement referred to Jean Dreze and Amartya Sen on the need for sustainable development. It spoke about ‘ghosts’ in the system, cracking down on black money and money laundering, the problem of multiple PAN numbers, and the benefits of a centralised system like the UIDAI to combat all these. Mr. Venugopal pointed out that Binoy Viswam had said that Aadhaar is the most robust way to achieve de-duplication.


At this point, Sikri J asked how pensions fell within section 7 of the Aadhaar Act because pension is a right, not a benefit. Mr. Venugopal responded that fake pension cards exist, thus the need for Aadhaar. When Sikri J said that this becomes relevant in the context of exclusion, Mr. Venugopal repeated that nobody who has been allegedly excluded has come to the Court.


Chandrachud J pointed out that there are ‘rough edges of the Law’ which may need to be softened in order to avoid exclusion. Mr. Venugopal responded that cases of exclusion can be dealt with only if someone complains. Chandrachud J asked about multiple potential problems Aadhaar created for some pensioners, such those with dementia. Mr. Venugopal reverted to the World Bank Report which said that a unique identification system is the only way to progress. He emphasised that India is a welfare state and the government will not exclude anybody. Chandrachud J then asked how a pension can be considered a subsidy, benefit, or service under Section 7. Mr. Venugopal replied that pensions are covered by the definition of ‘Benefit’ under the Aadhaar Act.


Here, Chandrachud J said that the act of exclusion was undeniable as the Cabinet Secretary had acknowledged it in December 2017. He asked the Union of India to be upfront about it and inform the Court about measures taken to address the same. Mr. Venugopal has promised to submit this information  to the Court. Mr. Venugopal then read excerpts from his recent lecture on “Poverty as a challenge to Human Rights” (See Page 42 of the submission). He argued that 300 million poor people of India could not be deprived of their right under Article 21 for the privacy interests of the elite. Clearly, this is where the question of balance of rights lies.


Mr. Venugopal pointed out that there are mechanisms under the regulations to ensure seamless delivery of benefits. For instance, until the individual gets an Aadhaar, he can use alternative forms of ID; if biometric authentication fails, then the individual can show his/her Aadhaar number to get the benefits. There is no exclusion and moreover, exclusion could not be a ground of striking down the project. He promised that issues of exclusion, if any, will be tackled by the Government.


Mr. Venugopal returned to the ‘highly researched’ Identification for Development Report which makes it clear that there cannot be second thoughts of the benefits of Aadhaar. The Foreword to the Report says that official identification is more than a convenience – it is a fundamental human right. A lack of identification adversely affects women and children specifically. At this point, Sikri J enquired about the necessity of centralising the data and wondered why less intrusive methods had not been considered, and he saw this as a lack of proportionality. He mentioned the use of Smart Cards in Singapore as an alternative system. Mr. Venugopal responded that there is no question of aggregation in the Aadhaar scheme. He added that de-duplication is not possible in a smartcard.


With this, arguments for the 20th day concluded. The case will be next heard on March 22nd 2018.