By Arpita Biswas
In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of a fundamental right has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.
The final hearing commenced today.
The matter is being heard in front of a constitutional bench, comprising of Chief Justice Dipak Misra, Justice Sikri, Justice Khanwilkar, Justice Chandrachud and Justice Ashok Bhushan.
Senior Counsel Shyam Divan commenced the arguments for the day. He mentioned that since the range of the matter was vast, the petitioners would take necessary measures to not repeat arguments and allocate time amongst themselves.
Mr. Divan stated that the Aadhaar project itself was under challenge, as opposed to merely the Aadhaar Act. He stated that from January, 2009 to July, 2016, the system existed in the form of a project, which was followed by an Act. The relevant consideration however, was whether the project was constitutional at all.
He stated that the project was of a continuing nature, and that the statute only covered a few aspects of the project.
He also mentioned that the threat of the Aadhaar project was considered to be ‘insidious’, making reference to an ‘electronic leash’ which connected citizens to a database.
He then questioned the consequences of challenging an order of the court. He stated that the Aadhaar Act was under challenge, in addition to which certain parts of the Aadhaar programme which are not under the ambit of the act would also be under challenge. He then listed out a few other challenges.
With relation to handing over biometric information to the state, he stated that there was no concept of eminent domain that could be applicable to the body or that of bodily autonomy, and that this would be unconstitutional. He also shed light on concerns regarding free consent raised by several people. He argued that there should be an ‘out’ provision, and that self-determination was an important consideration.
He then stated that from 28th January 2009 till 2016, the programme functioned under an administrative direction.
He then went on to discuss the orders passed in 2015, which stated that Aadhaar could not be mandated for any services other than PDS and LPG, except as may be directed by the court for the purposes of criminal investigation. He then mentioned a subsequent order which included 4 other schemes in addition to the ones mentioned above.
He then referred to several schemes and services that had to now be linked to Aadhaar, in addition to the eKYC requirement, stating that it would be difficult to avail of a multitude of basic services without an Aadhaar card.
He also made reference to the fact that the whole scheme was supposed to be voluntary and that by imposing a mandate, a false declaration was also being imposed.
The arguments then moved on to matters of exclusion, and how the programme was working against the interests of several parts of the population.
Mr. Divan started off by stating that a large number of people working in the field have found that Aadhaar is operating as an instrument of exclusion.
He stated that citizens from several remote areas of the country have not been able to access the facilities necessary to issue Aadhaar cards. In addition, it is well known that biometrics are an unsuitable form of identification, because they are prone to change, especially for those below 15 and over 60 years of age. This is also applicable to people who are involved in manual labour.
He concluded by stating that the programme stigmatizes and excludes several people.
He stated that similar to the concern that privacy was merely an elite concern, brought up during the 9 judge bench hearing in Puttaswamy vs. Union of India, it was apparent from the above instances that Aadhaar is detrimental for under-privileged sections of the society.
He went on to focus on the issue of duplication of biometric information, and how it was estimated at the beginning of the programme that a minuscule portion of the population (roughly a 1000 people) may have to face exclusion due to duplication.
However, as of 15th Jan, 2017, biometric duplication rejects amounted to 6.23 crores, which amounted to more than the population of a few states. Citizens with duplicated information could not come on to the system.
He then went on to discuss different forms of identity systems, referring to a deterministic system and an idealistic system. He stated that a deterministic system functions on exact matches, like an OTP or a security code. The Aadhaar programme does not function on this principle, which is an important concern from a constitutional perspective.
The system in place is idealistic and functions on probability. He went on to discuss how exact fingerprint matches were not considered in the Aadhaar system, and that a template was used. The use of this system implies that there is a risk of rejecting valid biometric information.
He stated that if a citizen is entitled to a service, then the process connected to it cannot be based on probabilities, but should instead be deterministic.
The focus of the arguments then shifted to the structure of the UIDAI. He made reference to enrolment officers and how they were all private entities. He then went on to discuss the composition of the UIDAI.
The Bench stated that the functions did not appear to be labour intensive.
Mr. Divan stated that while this may be the case, there was no government control over when the information was being gathered, and that this information could easily make its way into the hands of private parties.
He further stated that some form of statutory governance should be mandatory for sensitive data. He stated that the validity of the charter under which the programme was operating should be questioned, and the larger concern was whether this was an adequate charter for biometric data collection at all.
Mr. Divan explained how the Aadhaar system would allow for surveillance in real time.
He also stated that there were different silos of information, which were bridged by Aadhaar and which allowed for profiling.
He went on to question why a system through which the central government could track movements in real time would be permissible and also questioned its architecture.
The bench questioned whether the problem was with the states use of the data.
Mr. Divan stated that the entire structure was unconstitutional, and not merely because there was no Act in place.
He referred to the system of data collection and stated that the design itself was flawed and that biometric systems across the world do not work on this scale. After a certain age, most countries don’t collect biometric information. Due to these inherent flaws, there are several people in the country who do not have identity documents at all.
The focus then shifted to the Standing Committee’s Report. Mr. Divan drew attention to several observations in the Report, relating to privacy and surveillance. He also discussed the faults with the biometric identity system in the United Kingdom and why it was eventually revoked.
Mr. Divan further discussed the problems with the old bill highlighted in the report, which were applicable to the current Act as well. There was also a brief discussion about the nature of the money bill and the NIDAI bill, after which the hearing concluded.
The hearing will continue tomorrow (18th January, 2018).
Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi