Day 33 Arguments

Constitutionality of Aadhaar Act

April 25th 2018

Mr. Rakesh Dwivedi continued his arguments from Day 32. He began by reiterating that Aadhaar is not necessary – and more so, incapable – of enabling surveillance. The information that is required for targeted profiling or surveillance is already available with Requesting Entities (“RE”). The government only authenticates and retains no information. He argued that there is strong propaganda about how the Aadhaar is dangerous and an unsubstantiated fear has been inculcated. He contended that the concept of algorithms has been smudged to portray that Aadhaar has the capacity to surveil. He argued that private players like telecom companies, Google, and Facebook collect and store a lot more information about users, and says that when all this information is easily available and accessible, Aadhaar is not required for access to any information. The information possessed by the Authority is of no commercial value.


Mr. Dwivedi elaborated on the safety mechanisms in place against REs. The information retained by the REs is insufficient for any targeted profiling or surveillance. Secondly, this is information that they would can access in other ways as well. Finally, they have no role to play in the device that enables authentication. The device is already secured to encrypt, before the RE purchases it. The device codes that are directed to the Authority are a part of ‘metadata’, essential to ensure safe and secure transactions. Encryption, time stamps and the digital signature of the RE form a part of the safety mechanism. Moreover, REs have to undergo auditing. He argued that the UIDAI can exercise fair and reasonable safeguards under Article 21 to monitor RE activities. The data collected by REs is segregated and cannot be consolidated. UIDAI is an autonomous body with the Central Government, with no access to data. Thus, there is no possibility of surveillance.


Next, Mr. Dwivedi discussed the Order of the Supreme Court in Lokniti Foundation v. UOI. He argued that the Supreme Court had allowed mandatory linking of SIM cards with Aadhaar, and emphasized that linking is necessary to check the menace of fake SIM cards. Chandrachud J clarified that the Supreme Court had never directed the conduct E-KYC of mobile numbers using Aadhaar. Mr. Dwivedi accepted that the e-KYC was done on the recommendation of TRAI before the order in Lokniti v. UOI, but added that e-KYC was a proportional exercise, keeping in mind the legitimate state interest in curbing fake SIM cards.


With that, Mr. Dwivedi concluded his arguments.


Next, Mr. Gopal Sankaranarayanan, representing the Centre for Civil Society (an Intervenor), began his arguments. His first argument is that the Aadhaar Act as a whole does not violate the Right to Privacy, but certain provisions of the Act must be read down. Secondly, the Aadhaar Act is not mandatory. Third, Section 139AA of the Income Tax Act violates Articles 14 and 2. Finally, the Right to Self-Identity is a fundamental right under the Constitution and the process of exclusive identification by the Aadhaar Act violates this right.


Mr. Sankaranarayanan will be resuming his arguments on April 26th 2018.

(The post relies on the contributions of Ms. Veera Mahuli)