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 yesterday, a summary of the argument can be found here.
Senior Counsel Shyam Divan started off by reiterating that fingerprints are unsustainable and usually alter over time. Justice Chandrachud agreed stating that they are known to be unreadable after a couple of years.
Mr. Divan then stated that 3 aspects were problematic. He stated that the ‘integrity of the process’, the ‘integrity of the information being collected’ and whether ‘there is a pervasive invasion of fundamental rights’ would have to be considered.
Referring to the report, he also highlighted additional concerns relating to privacy, personal autonomy and information, which would include compelled speech.
He then went on to refer to the structure of the personnel at the UIDAI, reiterating the point about enrollers being private entities.
The focus then shifted to enrollment forms, and the contents of these forms over the years.
Referring to an older version of the form (pre-statute), he stated that:
1) There was nothing on the form that suggested that enrolment was voluntary.
2) There was no mention of biometric information being collected.
3) There was no indication of the basis on which this information was being filled
He also reiterated that the state could not compel anyone to pass on information to a private entity. He mentioned that there was no statute in place at the time the form was in circulation.
Justice Chandrachud asked if the private entity being an agent of the state would have made a difference to the situation, to which Mr. Divan responded in the negative.
He mentioned that the enrolment system was flawed and that ‘everything about it from beginning to end is unconstitutional’. He also mentioned that there was no counselling that was done prior to the statute, stating that that suggested a lack of integrity.
He stated that all of the above was problematic from a constitutional design and legal architecture perspective.
Mr. Divan then stated that the UIDAI had no contractual agreement with the private entity that collects information, and that no legal obligation had been created.
Justice Chandrachud questioned why it would be problematic to handover data to a private entity, given that insurance companies, telecom companies and several other private entities have records of sensitive information like addresses, etc.
Mr. Divan stated that parting with private information would be different in that context since there may be some form of a contractual obligation in that instance. In the case of biometric information, a citizen would be unaware of the identity of the private entity handling their data, as opposed to when data is handed over to a telecom company or an insurance company. He further stated that the example stated is wholly different than the state compelling someone to handover their data to a private entity, specifically one with which they do not have a contractual obligation.
He went on to discuss the role of operators and how close to 40,000 operators were reportedly blacklisted in 2017. He then went on to discuss the roles and responsibilities of the registrar (pre-statute). In addition, he discussed the role of verifiers and introducers, and listed out the requirements for these positions.
The focus then shifted to a memorandum of understanding between the Delhi government and the UIDAI (dated 2010).
Mr. Divan mentioned that this was the first stage at which the use of biometric data for identification was mentioned.
He stated that the memorandums were not supported by a legal framework either.
Referring to the points mentioned above, he stated that there was palpable arbitrariness and a lack of integrity in the system. In the absence of supporting contracts, citizens were in a fragile position and there was no protection for them as such.
The focus then shifted to the Supreme Court judgment on a fundamental right to privacy (Puttaswamy vs. Union of India).
Mr. Divan read out excerpts from the judgment. He started off with Justice Chandrachud’s judgment, focusing on the ‘right to personal liberty’.
Referring to Maneka Gandhi vs. Union of India, he also referred to the ‘variety of rights’ covered by Article 21.
He also made reference to the ‘jurisprudence on dignity’ section (Para 96, Page 94) in Justice Chandrachud’s judgment.
The focus then shifted to the NALSA judgment (Para 84, Page 85), stating that the right to privacy “does not necessarily have to fall within the ambit of any one provision in the chapter on fundamental rights”.
Lastly, he made reference to the concept of ‘spatial control’ in Justice Chandrachud’s judgment, as well as that of information privacy.
The hearing will continue on the 23rd of January, 2018.
Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi