Day 38 Arguments (Pt.1)

Constitutionality of Aadhaar Act

Day 38 Arguments: 10th May, 2018

Mr. Gopal Subramanium continued his rejoinder arguments. He argued that Section 7 along with 144 notifications issued under it undermine the ‘dignity’ of poor citizens by imposing conditions on basic entitlements. Justice Sikri observed that the Aadhaar stated aim is to make subsidies reach the targeted beneficiaries. Mr. Subramanium responded that the stated purpose of the law cannot be taken at face value and the purpose has to be demonstrated. In this case, he said, Government has not demonstrated that Aadhaar has achieved its purpose of seamless delivery of subsidies. Despite making Aadhaar compulsory through 144 notifications, State has furnished no evidence to show that there has been any change  in the delivery of said services.


Focusing on Section 7, Mr. Subramanium said that the section inverts the symmetry of power between citizens and the State by giving State unlimited powers to limit citizen rights. He submitted that phrase “subsidy benefit”  under section 7 are “words of condescension”. He said that Aadhaar cannot be seen as an affirmation action law as  rights under Articles 14, 15, 16, 17 and 21 are violated by imposing preconditions on basic entitlements.


Chandrachud J enquired if subsidies under section 7 are largesse or rights. Mr. Subramanium responded that it has been settled position since Bandhua Mukti Morcha case (1982) that certain subsidies are rights. He added that contrary to judgment in Bandhua Mukti Morcha, even the bonded labour rehabilitation scheme has been linked to Aadhaar. He submitted that an ideal regime is one where even a beneficiary is not made aware that he is a beneficiary to protect the person’s dignity.


The penetration of constitutionalism is committed to the dissolution of certain discriminatory identities and enactment of constitutional provisions like Article 17, 23 and 24 are in furtherance of that objective. However, Aadhaar works in counter-purpose by even denying rehabilitation to persons who have suffered as  Manual Scavengers or Bonded Labours, unless they have Aadhaar. He also referred to the Kalpana Mehta Case where Supreme Court held that Parliamentary Standing Committee Reports (PSCR) can be relied upon by the Courts as evidence. He alluded to the Standing Committee Reports of 2010 which had opposed Aadhaar programme in its current form.


Chandrachud J observed that an Act like Aadhaar needs a regulator which is absent. Mr. Subramanium agreed that Aadhaar collects and stores citizens data without a robust data protection framework. He submitted that Aadhaar Act needs to be struck down in entirety for failing all three tests laid down in Puttaswamy: (i)there is no legitimate aim as stated aim is different from purported aim; (ii)there was no law when Aadhaar was implemented; (iii) there is no ‘proportionality’ in infringement of rights.


He concluded by citing Dr. B.R. Ambedkar where he said that political democracy rests on four premises: first, individual is an end in itself. Second, individual has certain inalienable rights guaranteed by the Constitution. Third, individual shall not be asked to relinquish any of his constitutional rights as a price for any privilege and lastly, the State shall not delegate power to private persons to govern others.  He submitted that all these principles are violated to different degree by Aadhaar programme. He asked the bench to strike down Aadhaar Act in its entirety and destroy the biometric database.