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.
Senior Counsel Rakesh Dwivedi resumed his arguments on behalf of UIDAI and the state of Gujarat.
He discussed the nexus between s.7 of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act / Act) and welfare of the society. Justice Chandrachud mentioned that as per the submissions, the absence of a robust method for identification of beneficiaries result in leakage of services which is appropriated by undeserved. He asked if Aadhaar would help in eliminating this issue to which Mr. Dwivedi answered in the affirmative.
Justice Chandrachud stated that the caveat pointed out by the petitioners is that there should be no exclusion on the grounds of not having an Aadhaar. Mr. Dwivedi responded that adequate measures are taken to ensure that no exclusion takes place on that ground. He further stated that Aadhaar brings the card holder face to face with the service provider since he has to go to him and give his biometrics. Justice Chandrachud responded that it is not the best model of governance and ideally the state must go to the individual. Mr. Dwivedi responded that such a model would depend on the capacity of the government.
Next, Mr. Dwivedi discussed about countries having economic and social rights and right to welfare as part of their respective constitutions also pointed out that welfare rights are a part of the Universal Declaration of Human Rights (UDHR). He reiterated that basic welfare requirements must be taken care of.
Mr. Dwivedi then referred to the Statement of Objects of the Protection of Human Rights Act, 1993 and pointed out that India is a signatory to it and many other international covenants as well. He further referred to various judgments of the Supreme Court on economic and social welfare, which culminated the framing of the Aadhaar Act.
Addressing the issue of balancing of rights, he referred to CJI’s judgment in Subramanian Swamy v. UoI, and pointed out how the right to freedom of speech was balanced against the right to reputation. He also referred to X v. Hospital Z, G. Sundarrajan v. UoI, Asha Ranjan v. State of Bihar, and Noise Pollution In Re v. UoI.
Mr. Dwivedi submitted that s.7 of the Act addresses the human rights of many people in the country and therefore the court should act as a sentinel and ensure that the right to privacy is balanced against all the other rights guaranteed under Ar. 21 that are covered by the Act. He reiterated that privacy is a small price that is to be paid for ensuring life and other rights under Ar.21. He further submitted that larger public interest is the determining factor when there is a conflict between rights. Justice Chandrachud however responded that it cannot be accepted as a ground for suppression of civil rights and Mr. Dwivedi responded that Aadhaar does not result in it.
The CJI asked if the argument was that whatever was done under the Act was to enhance the Ar.21 right of many, that being the legitimate state interest, accompanied by minimal intrusion, and Mr. Dwivedi responded in the affirmative.
Next, Mr. Dwivedi addressed the issue of reasonable expectation of privacy. He began with a discussion of the four kinds of information collected as part of the Aadhaar programme- a) demographics, b) optional demographics, c) biometrics, and d) core biometrics. He reiterated that these information are encrypted and stored in the CIDR and the authentication is performed either through YES or NO mode or E-KYC mode.
He submitted that the reasonable expectation of privacy would vary from one kind of information to another and that nobody can have it with respect to their demographic information and photo as it is publicly available.
The CJI mentioned that in case of every right, everyone has a reasonable expectation of exercising it. He further stated that in some instances the rights cannot be exercised in absoluteness and therefore whenever freedom is claimed it should be reasonable and that it applies to privacy as well.
Justice Sikri mentioned that the fact that the CIDR has all these information creates a fear of the data being utilized in a manner and for purposes unauthorized by the individual. Mr. Dwivedi responded that the UIDAI could only take note of general apprehensions and not subjective fears.
The hearing will continue on April 24, 2018.