Day 30 Arguments

Constitutionality of Aadhaar Act

April 18th 2018

On the 29th day of arguments, Mr. Rakesh Dwivedi had argued that the Aadhaar Act fiercely protects data more than any data protection law ever could. He also defended the Aadhaar on the with respect to private parties using data, under Section 57.


Today, Mr. Dwivedi resumed his arguments. He said that the Parliament was conscious that people may not receive benefits because of the implementation of Aadhaar and because of the ‘digital divide’. Thus, it had provided alternatives to authentication under Section 7. The alternatives are : proof of possession of Aadhaar number or the application for enrolment.


Regulations 11 and 12, create obligations on any central or state agency that relies on Aadhar for the provision of benefits, to ensure that registration under section 7 is carried out by setting up centres and registries. There was no question of denial of benefits. If authentication failed for a member of a family, then the authentication of any other member of the family could be used instead. Chandrachud J asked about areas where Aadhaar services have not been able to reach. Mr. Dwivedi responded that in such a case, ‘alternative methods’ will apply. He argued that in PDS schemes, the central government can replace the identification card if it thinks that the replacement is more reliable.


Mr. Dwivedi argued that identification is a matter of dignity and pride, because ‘we all strive to get recognised’. To get benefits from an institution, one must comply with prescribed requirements. Chandrachud J stated that there must be a choice of identity. When biometric data are attached to every transaction, they cease to be just identification marks. Fingerprints by themselves may not disclose any information, but when they are attached to other information, they become a collection of personal identification markers. This calls for strong data protection. Mr. Dwivedi responded that in most cases, authentication is done only once. There is ‘no trail of authentication from morning to evening’, as claimed by the petitioners. At the point, Mr. Shyam Divan interjected to say that as shown in the court, while withdrawing Rs. 100, a thumbprint was used, which is ‘tracking’. Mr. Dwivedi quipped that the law does not ask that the thumbprint must be provided every time one transacts. Only your bank account has to be linked with Aadhaar. Mr. Divan gave an example of being asked for thumb impressions everytime one opens a Fixed Deposit Account. Mr. Dwivedi remarked that not everybody is capable of opening an FD every day. It is done only once or twice in a year, generally.


Next, Mr. Dwivedi argued on dignity. He said that there are two parts of the preamble.

“To secure to all its citizens…”
“to promote among them all…”

Securing justice is a part of the basic feature of the Constitution. The State must strive to enable its citizens to live. To achieve that, we have laws like the National Food Security Act.


Chandrachud J said that the constitution protects dignity in all its forms. Sikri J said that food is a part of dignity, but so is privacy. In a conflict between the two, one must consider which one should prevail. If possible, both must be protected. CJI Misra pointed out that storage of data in the Aadhaar architecture is an invasion of the right to privacy. Mr. Dwivedi responded that any system which involves biometrics will require storage of biometrics- either at a single point or at multiple points. To this, CJI Misra said that minimal intrusion, to achieve legitimate interests, must be ensured.


Mr. Dwivedi reiterated that the provision of services and benefits ensure dignity and liberty of individuals.The UDHR, the Supreme Court in Kesavanand Bharathi v. State of Kerala and the NALSA judgment all say that the State has the positive obligation to ensure the dignity of the citizens.


With that, the arguments on the 30th day concluded. Mr. Dwivedi will continue his arguments on April 19th 2018.

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