Day 23 Arguments

Constitutionality of Aadhaar Act

April 3rd 2018

Day 23 of arguments in this matter began with the Attorney General of India, Mr. K K Venugopal, responding to the questions raised by Mr. Shyam Divan, regarding the presentation by the CEO of UIDAI, Mr. Ajay Bhushan Pandey.


In response to the concerns regarding exclusion of people from receiving benefits and entitlements, Mr. Venugopal said that the failure to apply once (for instance, due to the failure of biometric authentication) does not preclude the person from applying for Aadhaar again. He argued that problems in implementation should not be the basis of scrapping the whole scheme. He pointed out that even international organisations such as the United Nations and the World Bank employed such unique identification measures, so why can’t India, as a sovereign nation, do so?


On using smart cards as an alternative, Mr. Venugopal said that smart cards had been rejected, due to their high cost. Further, the Aadhaar scheme is robust enough to handle online identification even in rural areas. There is no need for the offline identification afforded by smart cards.


Post lunch, Mr. Venugopal began by highlighting Chandrachud J’s judgement in the Right to Privacy case, to say that the tests for privacy that he laid down are satisfied by the Aadhaar Act – The Act is for a specific time period, it is for a legitimate state interest, and it is proportional. In the absence of serious negative consequences, the Aadhaar Act satisfies the requirements for constitutionality. This leaves only the question of implementation. The Supreme Court has held that a valid law cannot be found unconstitutional merely on the grounds of faulty implementation. The Government has expended tremendous effort over the years to ensure that the invasion of privacy was as minimal as possible.


Moreover, Chelameswar and Bobde JJ had recognised that privacy is not absolute, and a legitimate state interest could override it. The subsidies under Section 7 are part of the right to a life with dignity and should prevail over the right to privacy.  Mr. Venugopal also read out Nariman J’s opinion from the privacy judgement, that whichever article is applicable in a particular case of privacy, the corresponding restrictions will apply, and ultimately the Court must undertake a balancing exercise. He cited the Right to Information Act as a reasonable restriction on privacy in the larger public interest. As privacy is a fundamental right under Article 21, it is subject to the limitations of the same article. The test of proportionality must be applied in this case. The petitioners must establish that this test has not been satisfied.


Mr. Venugopal said that the Aadhaar Act has adequate safeguards. It is a just, fair, and reasonable law. It is in pursuance of a larger public interest, including preventing dissipation of social welfare benefits, restricting black money and money laundering, preventing income tax fraud, and lastly, preventing terrorism – all legitimate state interests. The Supreme Court cannot second guess the value judgement of the legislature.


Mr. Venugopal argued that before the right to privacy judgement, the government could not proceed on the assumption that there existed a fundamental right to privacy. At this point, Chandrachud J said that the right to privacy judgement declared that all prior judgements that had upheld the right to privacy were correct. Mr. Venugopal responded that those judgements were per incuriam because there were larger benches that had held there was no right. The CJI disagreed with this argument.


With that, the day’s arguments came to an end. The matter will be next heard on April 4th 2018.

(This post relies on the contributions of Ms. Ashrutha Rai.)