Day 37 Arguments

Constitutionality of Aadhaar Act

May 9th 2018

Mr. Shyam Divan resumed his rejoinder arguments. He charged banks and telecom companies with linking Aadhaar without the customers’ consent and termed it as ‘inorganic seeding’. He said that UIDAI collected biometric data of over 1 billion people without statutory backing and enabled a surveillance architecture which can give IP address, data, time and location of any individual. He pointed out that the source code of Aadhaar architecture belongs to foreign companies, an angle which should be looked into.


Mr. Divan argued that by making Aadhaar compulsory under Section 7 despite multiple interim orders, the State has denied basic entitlements –  food rations, medical facilities to the disadvantaged. He said that making Aadhaar compulsory for subsidies has led to “retrogression of human rights”. He gave instances of Sarva Siksha Abhiyan and Mid-Day Meal Schemes where Aadhaar has been made compulsory for getting food entitlements. He said that the State cannot place any condition on poor children for availing the food entitlements.


He gave another instance where Aadhaar was made compulsory for participating in an essay competition and he termed it as “beyond any reasonable limit of proportionality”. He mentioned about Ujjwala scheme where women recused from trafficking would need Aadhaar to get compensation.  He submitted that vulnerable and disadvantaged groups should not be mandated to get Aadhaar. He said that Section 7 beneficiaries have been reduced to ‘second-class citizens’ whose personal autonomy, choice and dignity are constantly being violated by Aadhaar architecture.


He further pointed that Aadhaar being based on a probabilistic system has chances of excluding genuine beneficiaries and violates the ‘non-retrogression of rights’ which is a key principle of human rights law. He concluded by saying that the Aadhaar Act will not survive the first five words of the preamble, “We the People of India”.


Next, Mr. Gopal Subramanium, the counsel for the petitioners started his arguments. He argued that State has a continuing constitutional obligation to reach out to the citizens. This obligation cannot be reversed by putting the burden of proof on citizens to establish their identity. He enquired rhetorically – Will poor children fake their identity for mid-day meals or do poor disabled people fake their identity? He questioned the distrust that State has for its disadvantaged, vulnerable section.


He argued that Aadhaar has a faulty mechanism where a genuine person might not get authenticated despite multiple attempts. He asked – how can the State subject citizens to such programme? Mr. Subramanium enquired about the ‘compelling state interest’ in linking Aadhaar with non–essential services like telecoms and banks. He said that Aadhaar inverts the symbiotic relationship between State and citizens He termed Aadhaar as a “fetter on self-actualisation”. Mr. Subramanium will continue his arguments tomorrow.