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.
The final hearing commenced on January 17, 2017. Summaries of the arguments advanced on the previous hearings 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. Subramanium resumed the arguments for the petitioners. He began with a discussion of the concept of reputation with reference to Subramanian Swamy v. UoI, in which it was upheld as a natural right, as a facet of dignity. He emphasized on the need for proportionality and stated that the whole country can’t be assumed to be involved in impersonation as it would be an anathema to the fundamental principle of dignity. He also stated that there is an umbilical connection between fairness, justice, and dignity and asked if the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act / Act) is fair and just.
Next, he raised concerns with the lack of accountability in the Act and pointed out incidents where the centre blamed the state government and ration officers with reference to incidents of starvation deaths. He submitted that the lack of authentication has led to deprivation and that the cause for failure is the inbuilt architecture of the Act.
Justice Chandrachud asked the difference between identity and identification and if the identification under the Act impairs the right to identity. Mr. Subramanium responded that while taking a doctrinal position, all of us should have a political identity and submitted that what is relevant to the Constitution is identity and what is extraneous is identification. He further stated that minimal regulatory identification is acceptable whereas identification for availing rights is not.
He further pointed out that Aadhaar Act has an element of objectification and depersonalization and that it does not accommodate the possibility of a person existing independent of Aadhaar.
He then stated that we cannot assume that a need for identification for the entire country has arisen due to few fake/ghost people. He argued that the state can’t use this mechanism to find out the ghost people rather it should have a better mechanism which is more accountable and adheres to due procedure. He said that incidents of pilferage should be identified and appropriate action should be taken against it but it should not involve treating every person with indignity.
Next, he referred to para.224 of Puttuswamy v. Union of India addressing the issue of reasonableness of laws and submitted that the Act lacks substantive and procedural reasonableness. He submitted that the Aadhaar architecture is probabilistic, uncertain, and absolutely non-normative and therefore it can never be a rational or reasonable method of identification. He pointed out that under our constitution, the onus of identification is on the state.
He then referred to the relevant part of the Puttuswamy case addressing restrictions on the right to privacy, which includes legitimate state aim and proportionality. He stated that “legitimate” by its very definition has boundaries but when the aim is unbounded as in the case of Aadhaar, it lacks legitimacy of purpose.
Mr. Subramanium then discussed the issue of informational privacy. He argued that the statute itself gives evidence that there is an aggregation of data including metadata. Justice Chandrachud said that Puttuswamy judgment allows for monitoring of web for ensuring national security. Mr. Subramanium responded that monitoring of web is different from aggregation of data and pointed out that it can pose as a huge threat if someone hacks into the database.
Justice Chadrachud referring to Judge Posner’s writings on privacy mentioned that privacy is a terrorist’s friend to which Mr. Subramanium responded that we are not dealing with terrorists but the entire population and therefore the situation here is different.
He also raised concerns with the aggregation and profiling of data by private players for various purposes that has no nexus to the stated object of the Act.
Next, he referred to the Act and tested its validity with reference to Ar.14, 19, and 21. Referring to sec.59 of the Act, he submitted that the expression “by law” means law at present and not retrospective law. He argued that abridgement of rights by law for the purpose of Ar.19 or Ar.21 can only be done by law which is in existence at the time the abridgement occurs and not by a retroactive law such as sec.59.
Justice Chandrachud pointed out that mere absence of law is curable but breach that has already occurred cannot be deemed to have not occurred. Mr. Subramanium agreed to this and further added that what lacked authority at the time cannot be retroactively conferred with authority. He stated that two points have to be considered while examining sec.59- absence of law and invasion of rights. He submitted that de-facto and de-jure invasion has occurred and in such a case a law can’t subsequently cure it.
Mr. Subramanium stated that the heart and soul of the Act is authentication and if it fails the consequence is disablement and in such a case there is no form of substantive or procedural redressal. He pointed out that the Act only provides for updating of biometric information and raised concerns regarding how an individual would come to know if his biometrics needs to be updated.
The hearing will continue on Thursday (22/02).