SC Constitution Bench on Aadhaar – Final Hearing (Day IX)

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.

An interim order was passed in December of 2017, a summary of the arguments can be found here and here.

The final hearing commenced on January 17, 2017. Summaries of the arguments advanced on the first four days can be found here.

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.

Mr. Sibal commenced the proceedings by remarking on the exclusion Aadhaar could lead to, referring to old age pension schemes and biometric failure.

Justice Chandrachud stated that exclusion could be caused due to several factors, including infrastructural issues.

The respondents interjected, stating that government documents proved that there were no exclusions taking place due to the infrastructure of the programme. The discussion then went on to alternate identity documents under the Aadhaar Act. The respondents, referring to Section 4,7 and 31 of the Act, stated that alternative means of authentication could be used, which proved that the infrastructure was not problematic.

Mr. Sibal then stated that a mere reading of the statute would not be enough, and that there were serious issues at stake. He also stated that the respondents’ interpretation of the provisions mentioned above was incorrect.

Following from which, the possibility of alternative authentication under Section 4(3) and 7 was discussed. Justice Chandrachud stated that Section 7 could be interpreted in 3 ways – as pertaining to authentication, proof of application and proof of possession. The Bench agreed with the respondents, stating that alternative of presenting an Aadhaar card would be sufficient for authentication. Mr. Sibal stated that this interpretation would only hold if the word ‘or’ was included.

The Bench also stated that the issue here did not relate to interpretation, but was relevant for the purpose of exclusion.

Mr. Sibal then went on to discuss the UK Identity Cards Act of 2006. He discussed the conservative parties’ arguments against the bill and the regulatory impact assessment conducted, which claimed that the Act would reduce identity fraud and effectively deal with illegal migrants. He stated that these arguments were similar to the points raised by the Indian state.

The discussion then moved on to social security cards and Aadhaar. Mr. Sibal stated that biometric information in several other jurisdictions was stored on a card and not a central depository. He stated that with a centralised system, Aadhaar functioned as ‘identity+’.

He then went on to discuss Section 7 and 57 of the Aadhaar Act, stating that in the absence of the former, the state could still use the latter to link other services to Aadhaar.

He also remarked on the fact that under the Act, alternate forms of identity were acceptable for enrolment but not for authentication.

The petitioners went on to discuss constitutionalism in the context of national identity. Justice Chandrachud stated that the Constitution allowed for multiple identities, in the form of gender, religion, etc.

He questioned whether there was parity in the way the Constitution envisaged identity, and the way in which Aadhaar did. Mr. Sibal stated that under Article 21, the Constitution would give a citizen the choice to establish their identity in multiple ways, which the Aadhaar programme would abrogate by mandating one form of identity.

Mr. Sibal reiterated that Israel had an optional identification system, through which citizens could choose to identify themselves for services.

The hearing will continue on Tuesday (13/2).

Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi

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