Day 36 Arguments

Constitutionality of Aadhaar Act

May 3rd 2018

Mr. KK Venugopal started with his rejoinder submissions. Mr. Vengupal argued that Aadhaar Bill was correctly passed as a Money Bill and did not require a Rajya Sabha approval. Rajya Sabha only had recommendatory power with respect to the Aadhaar Bill.  CJI remarked that court is within its power to examine the procedure for passing it as a money bill. In response, Mr. Venugopal cited Art 122, which prohibit the court from inquiring into the proceedings of the Parliament and also referred to the legal position as laid down in Mohd. Saeed Siddiqui v State of Uttar Pradesh.


Mr. Venugopal then focused his attention on Aadhaar-SIM linking issue. He clarified that presently, Aadhaar is not mandatory for getting a new SIM but there will be no fake SIM card connection if Aadhaar is linked to SIM. He continued that the Union will follow the interim order in the Lokniti Foundation case and make Aadhaar optional for the time being. He also negated the surveillance angle by arguing that a democratically elected government should not be accused of such conspiracy. He said that the Union takes exception to words “electronic leash” and “concentration camps” used during the petitioners’ arguments.


Next, Mr. Shyam Divan, counsel for petitioner began his rejoinder. He submitted that Aadhar architecture has the capability of turning India into a surveillance state. He said that Aadhaar allows for knowing the identity, time and location, which are three elements of surveillance. He cited from an expert report by Manindra Agarwal of IIT Kanpur who is also a member of the Security Review Board and Architecture Review Board of Aadhaar. He said that according to the report, biometrics database is accessible by third-party vendors like Morpho, Accenture etc. There is also a possibility of knowing the location where an individual did Aadhaar verification. He further pointed that even third parties can access the approximate location if the verification log is breached.


He then submitted that Aadhaar is both a privacy issue and ‘limited government’ issue. He rhetorically asked – how far does the coercive power of the State extend? Can it also extend to creating an architecture that can track people while making it mandatory for people? Responding to point about balancing of right with governmental interest, he said that no balancing can be done where fundamental rights are being violated. Chandrachud J observed that with the onslaught of technology, courts will have to think of new ways of safeguarding rights from being encroached upon by technology. The bench rose for the day and Mr. Divan will continue on 8.5. 2018.

(The post relies on contributions from Mr. Ayush Puri)