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 in the previous hearings can be found here.
Attorney General K. K. Venugopal resumed his arguments for the state. He stated that the policy decisions of the government cannot be the subject matter of any judicial review and that the three organs of the state should mutually respect each other. He further stated that judicial review of every administrative decision will hinder development and that the duty of the court is to expound the language of the act and not decide the fairness of a particular policy.
Justice Sikri pointed out that the petitioners’ are challenging the state’s submission that Aadhaar results in only minimal invasion of privacy and therefore their challenge is based on the principle of proportionality. Mr. Venugopal replied that Aadhaar has a legitimate state interest. However Justice Sikri stated that the bench is not concerned with the policy decision but the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act / Act) and the Regulations.
Justice Sikri further asked, if Mr. Venugopal is arguing that the Aadhaar system is almost impeccable and the court should not comment what is correct and what is not since the government has already performed extensive research with the help of experts. Mr. Venugopal replied in the affirmative and stated that the entire challenge is based whether the Aadhaar is safe and secure and that it already proved by them.
Next, he discussed the sixteen digit virtual ID. Justice Chandrachud asked if every Aadhaar holder gets one. Mr. Venugopal replied that it is up to the individual to generate one for himself through the UIDAI website. Justice Chandrachud asked if the entire population has the knowledge on how to do it to which Mr. Venugopal replied that it is only an additional measure. Justice Chandrachud suggested that there should be a provision that would enable everyone to have a virtual ID. However Mr. Venugopal stated out that if everyone is provided with one unique virtual ID just like an Aadhaar number, then it would be permanent and pointed out that now it is an ID that can be regenerated each time.
Justice Chandrachud confirmed if the idea behind the virtual ID is to mask the Aadhaar number so that one who is conscious about their privacy will have the option of providing a virtual ID in place of the Aadhaar number and prevent the latter from being in the public domain and AG answered in the affirmative.
Next, Justice Chandrachud stated that the fact that a legislation has adopted a legislative policy might indicate legitimate state interest but the mere fact that it is a policy decision is not sufficient to satisfy the proportionality test. Mr. Venugopal responded that the Aadhaar satisfies the test of proportionality since all possible alternatives were considered before it was adopted and reiterated that the court should not become an approval authority.
Next, Justice Chandrachud raised concerns with the power granted to the registration authority to determine what constitutes biological attributes and how it is to be collected. He said that because of the open-ended nature of biological attributes, in the future, the registration authority can even include DNA under it. He asked if power of this nature would satisfy the test of proportionality. Mr. Venugopal replied that as per s.55 of the Act Parliament would have the overseeing authority. However Justice Chandrachud pointed out that the regulations do not need the approval of the Parliament before it is implemented and that as per s.55 the regulation would be cancelled only if the Parliament disapproves it. Therefore the regulation takes effect as soon it is passed and its effect is not deferred till it is approved by the Parliament. He said this is an issue of excessive delegation. Mr. Venugopal replied that he would address this issue later.
Mr. Venugopal then referred to cases in which the collection of biometric information was decided to be reasonable and submitted that state may have vital interest in the collection of biometric information. Justice Chandrachud pointed out that in the cases referred, the biometrics were collected for a specific purpose such as in the interest of safety, ensuring protection against crime and stated that universal application of fingerprints irrespective of purpose is a violation of the proportionality principle. Mr. Venugopal replied that purposes enumerated under s.7 of the Act as well as other purposes such as prevention of money laundering, terrorism, black money are specific and legitimate state interests.
He then submitted that fingerprints are increasingly being used for non-criminal purposes and is not an unwarranted invasion of privacy.
Next, he submitted that fingerprints cannot be used for surveillance and that it only serves as a means for identification. He further stated that neither the current government nor the previous governments have used it for surveillance in the last seven years.
Next, he compared Aadhaar to SSN. Justice Chandrachud pointed out that SSN is equivalent to PAN card and not Aadhaar as it does not collect biometrics but contains only the name and SSN number. Senior Counsel Shyam Divan pointed out that SSN does not have authentication unlike Aadhaar. However Mr. Venugopal submitted that SSN collects more information than Aadhaar.
The hearing will continue on April 5, 2018.