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 the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.
Following from the last hearing, Senior Counsel Shyam Divan continued with the discussion on surveillance.
He started off by discussing the ECHR case of Zakharov vs. Russia, which dealt with how intercepted data was stored and the alleged violation of Article 8 of the European Convention. This judgment was passed by a 17 judge bench. The issue in this case was that the provisions which allowed interception by the government were allegedly in contravention of Article 8 of the EC, which was upheld by the ECHR.
He then went on to discuss another decision of the ECHR – Digital Rights Ireland vs. Minister of Communications. In the context of this case, he discussed a EU directive (2006/24/EC) on data retention and the obligation of retaining data relating to public communications.
He also made references to how the process entails an interference with the fundamental rights of nearly the entire European Union
Mr. Divan then discussed UIDAI documents on State Resident Data Hubs, making references to ‘360-degree profiling of individuals’. Referring to documents on Odisha and Madhya Pradesh, he specified that interlinking made it possible to obtain a 360-degree profile. He also stated that the State Resident Data Hubs retain biometric data.
Justice Chandrachud interjected, stating that aggregation of data for the sake of social welfare benefits (referring to the MP and Odisha documents) should be permissible.
Mr. Divan rebutted, stating that aggregation could not be justified at all.
Justice Chandrachud stated that perhaps that could be true for aggregation in a broader sense and could also raise serious concerns, but aggregation for social welfare schemes should be permissible.
Referring to another SRDH document, he illustrated how it was possible to detect the geographical location of citizens. To this, the Bench interjected stating that the technology would only make it possible to know registered information and not actual movements.
Mr. Divan stated that there were foreseeable problems with the government knowing details about citizens’, including but not limited to their religion and their relationship to communities. He stated that in a democracy, the government cannot know everything about its citizens.
He also referred to Justice Chandrachud’s judgment in Puttaswamy vs. Union of India, stating that data aggregation was an infringement of privacy.
Mr. Divan then went on to discuss the example of the Kerala dairy farmers welfare fund board and their pension authentication records, illustrating that the timestamp was retained and details of the device ID were too, in addition to several other details.
Further on this point, Mr. Divan pointed out that it was possible to locate where a person was in real time (within 200-500 meters). He also mentioned that the UIDAI retained information on biometric mismatches as well.
Justice Chandrachud interjected stating that we were all part of a highly networked age anyway, implying that a certain amount of data aggregation/surveillance would have to be permissible.
The Bench stated that several other forms of electronic transactions could lead to surveillance, for instance using an ATM card could entail giving up personal information. According to the Bench however, that would not be considered to be surveillance.
To this Mr. Divan responded stating that the information given up during an ATM transaction would be known to the bank alone.
He then stated that the Aadhaar identity system was initially meant for select pension schemes, which was no longer the case. He stated that if this was system was allowed to function as is, 20 years down the line citizens would be subject to an ‘electronic leash’ and their actions throughout the day could be tracked easily.
Further, allowing this system to prevail would also allow for a certain totalitarian line of reasoning to prevail, where the state could question what the citizens had to hide from the state to begin with.
Justice Chandrachud responded with the example of the World Bank, stating that Aadhaar was praised for its ability to deliver citizen centric services. He also stated that this was one of the best aspects of Aadhaar.
Mr. Divan disagreed, stating that monetary justifications could not be used to praise the system.
Justice Chandrachud stated that the Delhi Development Board argument should be focussed on and the argument relating to Section 57 should be visited separately.
Mr. Divan stated that this was a system of complete surveillance and that a perfect system of surveillance could not be constitutionally permissible.
Justice Chandrachud then stated that it was important to ‘get down to the brass tacks’ and not get carried away with the rhetoric of surveillance.
Mr. Divan mentioned that the first and foremost consideration was whether this was a matter of surveillance or not and whether Aadhaar could be used as an instrument of mass surveillance.
In addition, in the context of authentication he mentioned that the technology in question was not developed, owned or maintained by the UIDAI.
He then went on to discuss concepts of limited government, constitutionalism and the rule of law.
Mr. Divan stated that limited government had various dimensions, one of its dimensions being fundamental rights.
He questioned if the state could mandate a specific form of identification on a citizen. This was a further aspect of limited government interference.
The final aspect he discussed was that of dignity, which was applicable to individuals and collectives.
Further on issues of good governance and the rule of law he stated that the Aadhaar programme had gone ahead on the basis of an administrative notification, which did not mention the use of biometric data. In addition to which, several private parties who were not under contract were trusted with sensitive information. Lastly, the Parliamentary Standing Committee report has also pointed out that the system in place is flawed. Mr. Divan stated that to carry on with the existing system despite the afore-mentioned gaps appears to be unconstitutional and against the rule of law.
The hearing will continue on Thursday (1/2).
Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi