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.
The final hearing commenced on January 17, 2017. Summaries of the arguments advanced in the previous hearings can be found here.
Senior Counsel Shyam Divan continued with his rejoinder. He started off by addressing the UIDAI’s responses to the questions posed by the petitioners.
In this regard, he discussed the architecture of the Aadhaar programme, along with inorganic seeding. He discussed how entities of the Aadhaar architecture allowed traceability and location tracking. He also discussed flawed statistics that were released on the rate of authentication success.
Mr. Divan then referred to a 2009 order, which did not mention that biometric authentication would be a part of the Aadhaar programme.
He then discussed the unauthorized collection of data by the UIDAI, stating that biometric information was collected without any statutory authority. He stated that India was not a monarchy and unauthorized collection of this nature should not be permitted.
He also stated that the UIDAI had no way of verifying the accuracy of the information on its database . He also stated that there was no contractual obligation created between UIDAI and its agents. He then went on to refer to a hypothetical log of authentication, that was created to illustrate the point that biometric authentication would allow for tracking and profiling.
Mr. Divan then went on to discuss the World Bank report and the high level advisory committee. He stated that the report, which discussed the benefits of Aadhaar, stating that it was not as impartial as it seemed to be, and likened it to a ‘sales pitch’. He also stated that there were no people with expertise in civil liberties and privacy on that committee.
He then went on to discuss Section 59 of the Aadhaar Act and the validity of biometric information that was collected prior to the Aadhaar Act.
He also stated that under the Aadhaar programme, citizens were being compelled to ‘voluntarily’ sign up.
He stated that certain schemes should be excluded from the purview of Aadhaar, these included schemes that affected vulnerable portions of society. He stated that women who were rescued from trafficking, bonded labourers, children, those who were in need of rehabilitation and others, should be excluded.
In this regard, he stated that Sarva Shiksha Abhiyan should not require Aadhaar authentication.
Mr. Divan stated that the principle of non-retrogression would apply, and that it would not be possible to go backwards in human rights law.
He then questioned how Supreme Court orders could be overridden by economic advisers in the ministry.
He went on to refer to the August and October 2015 orders, stating that Aadhaar was declared voluntary in those orders and that it could not be declared mandatory till the Supreme Court decided it was.
He then went on to discuss the powers under Articles 226 and 227 of the Constitution, stating that the ‘magic’ lied in the fact that bureaucrats could not override independent judicial power and that their actions would be checked under the law.
He also discussed the issue of the Act being passed as a money bill.
Moving on, he referred to the an ‘intricate scheme of defences’ in the Constitution, and that there was a whole set of defences, the last being the court.
Referring to the ‘second bulwark’, he stated that Article 111 of the Constitution would also not be applicable if the Aadhaar Act was upheld as a money bill.
He then discussed the importance of protecting demographic information, and the ‘fatal’ features of the Aadhaar programme.
Lastly, he questioned if the Aadhaar programme could stand the first five words of the Constitution – ‘We the people of India’.
Senior Counsel Gopal Subramaniam continued with his rejoinder. He started off by discussing acts of malfeasance and misfeasance.
He referred to Section 33 of the Aadhaar Act, stating that there was a complete giveaway of information, including identity information or authentication records.
He questioned the information that was made available to the state, stating that there seemed to be no nexus between the requirement of knowledge and the delivery of services. He stated that this went against Puttaswamy vs. Union of India.
He stated that the collection of data of over a billion people was not fool-proof, referring to the Cambridge Analytica case.
Further, he questioned what happens when the legislature was not an enabler, stating that the law would be disempowering, if not empowering.
Referring to the Facebook data leak, he stated that this leak was thought to affect elections and political power dynamics in Singapore.
Further, he stated that the issue was not merely multiple classes of people that were, but also the price of revelation.
He also discussed the issue of legislative competence and voidness.
Lastly, he discussed the case of West Ramnad and the ability of the state to enact laws retrospectively.
He stated that the sine qua non for retrospective validation was the prior existence of a statute, which was not the case with Aadhaar.
The hearing will continue on the 10th of May.
Arpita Biswas is a Programme Officer at the Centre for Communication Governance at National Law University Delhi