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

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, 2018 and concluded on May 10, 2018. Summaries of the arguments advanced in the previous hearings can be found here.

Senior counsel Gopal Subramaniam continued with his rejoinder.

He started off by discussing the concept of dignity, stating that it was not meant to be promoted since it was assured under the preamble. He stated that dignity is inbuilt and would not depend on the largesse of the state.

Referring to the Aadhaar notifications, he stated that if the purpose of these notifications was to benefit individuals, the state would have to create conditions to ‘flower the dignity’ of people.

Justice Sikri commented on the duty of the state to provide benefits, which would also be a part of dignity. He stated that this would not just be applicable in cases of deprivation under Article 21 and that it would be an affirmative action.

Mr. Subramaniam agreed, stating that it would be an affirmative action. Further, he stated that the Act would have to be scrutinized to decipher whether it was an enabler or whether it was passed under the guise of enablement.

He then stated that the notifications begin with a preamble, which refers to the guarantee of seamless delivery of services.

He then discussed alternate forms of identification, like ration cards, stating that existing forms of identification were not failing, and Aadhaar therefore did not have a purpose.

He referred to examples of women in Jharkhand who could not get services despite having ration cards, due to failed Aadhaar authentication.

He also discussed the Essential Commodities Act and the central governments obligation.

He also discussed the applicability of the test of the ‘true purpose of the law’.

Further, he discussed the lack of machineries that were set up under the Aadhaar programme, stating that Aadhaar did not serve any special purpose since existing machineries were used to deliver services.

Mr. Subramaniam then went on to discuss the asymmetry of power under Section 7 of the Aadhaar Act.

He also stated that the Act was not enacted for a proper purpose. Further, he stated that the first step of legitimate aim was ‘proper purpose’. He also stated that it could only be justified if the right was preserved and that dignity and autonomy were not preserved under Section 7 of the Act.

Further on the issue of ‘proper purpose’, referring to the idea of ‘Socratic contestation’, he stated that a claim to a proper purpose would not qualify as a proper purpose.

Mr. Subramaniam then discussed the three letters of authentication. He stated that authentication was at the heart of the act and that failure of authentication was a ground for denial.  In relation to requesting entities, he discussed their lack of accountability under the law.

Further, he discussed the GDPR and the change in protocol. He also discussed the concerns about privacy of communication and not the privacy of individuals.

Further, he stated that there weren’t any other jurisdictions where the state could take all of its citizens data.

He also stated that declaration of human rights was necessary for this act. Further, he stated that the Act reduced people to numbers and also discussed the perils of using probabilistic algorithms.

Referring to Section 7 of the Act, he discussed ‘grants, subsidies, benefits’ as expressions of condescension.

Mr. Subramaniam further discussed the ‘power’ under the Act, stating that the power enables the collection of information.

He discussed the test in constitutional law, which was to question whether the state should logically be the holder of such information.

Further, he stated that if knowledge was power, giving information to the state would signal a ceding of power.

Justice Chandrachud commented on the nature of subsidies, to which Mr. Subramaniam stated that subsidy was provided at different levels of government.

Mr. Subramaniam then discussed Section 7 and stated that under it, strict rights were being bracketed. He further stated that it was not merely a segregation and that entitlements were being treated like grants.

On this Justice Chandrachud stated that wage payment was a benefit, to which Mr. Subramaniam responded, stating that wage payment would be a vested right.

He further discussed the Courts guidelines for rehabilitation laid down in 1982 in relation to bonded labourers, before deciding whether to rehabilitate or free them.

In this regard, he also discussed the incarceration of mentally ill citizens and the writs of mandamus issued to the Union.

Moving on, Mr. Subramaniam discussed census data and its use at federal and state levels. He stated that states had policies in regard to requesting data from the central planning commission.

He further stated that census data was a way of social mobilization, and that there was pre-existing data owing to the census.

He then discussed the concepts of horizontal protection and vertical protection, stating that the former was more important in the given instance.

Further, he discussed bodily integrity and autonomy as important considerations.

He also stated that ultimately, the fundamental freedoms in India must never be compared with the 4th Amendment under the United States constitution.  He also stated that the Indian constitution was a living document.

On the issue of Section 7, Justice Chandrachud stated that it is an enabling provision and not a mandate. He stated that it enabled the government to impose a mandate, the difference arising from may/shall.

Further, it was stated that these rights could not be ‘wielded down’. He also stated that there was no common denominator and rights could not be subsidies. Further on the issue of Part 3, he stated that the rights conduced to dignity.

Mr. Subramaniam then discussed identities and the dissolution of some kinds of identities.

He stated that if an act like manual scavenging was antithetical to the soul then he would want it destigmatized with the march of time. He further discussed how certain actions were akin to unmaking the dignity of people.

On the issue of fake profiles, he stated that it was not a matter of sticking up for fake profiles, but rather a matter of sticking up for better administration.

On the alleged voluntary nature of Aadhaar, he questioned how people could be asked to contract when they were not even under the capacity to contract.

Further, on the ‘legitimate aim’ of Aadhaar, he stated that collecting massive amounts of information would not satisfy this aim. He stated that the means used had to be adept and valid.

He also discussed the issue of two competing rights, which had to be balanced. In this regard, he discussed the concepts of freedom, autonomy, self-preservation and self-actualization. He also stated that the act of balancing had a direct correlation with seminal values and objectively protected values.

Mr. Subramaniam then stated that no contemporary studies on Aadhaar had taken place, the last one having been conducted a decade ago.

He then went on to read excerpts on an individual’s inalienable rights, stating that an individual should not be required to give up their rights.

Further, he stated that the procedure established by law had to be just, fair and reasonable.

On the Aadhaar project, he stated that there wasn’t merely a possibility of abuse, but that the Act postulated compelled behaviour.

He stated that the primary focus was that the judiciary had an obligation to protect fundamental rights.

Referring to the Constitution, he stated that it was a living document and should be seen as transformative. Further, he discussed parliamentary supremacy and the capacity to refuse. He stated that autonomy and integrity were intertwined in the capacity to refuse and if the capacity was obliterated, then the autonomy would also follow suit.

Mr. Subramaniam further discussed relief, stating that the petitioners would want the data stored to be taken down. He also stated that the Bench should exercise its powers under Article 32 and also rely on the case of Nilabati Behera.

Lastly, he stated that the propensity of information was an important consideration as well.

Next, senior counsel Anand Grover commenced with his rejoinder. He was brief, stating that none of the contentions of breaches of security had been dealt with and that privacy should not lose its character.

Next, senior counsel Arvind Datar commenced with his rejoinder.

He started off by stating that ‘pith and substance’ had no application to the legitimacy of an article and would not be applicable to a money bill.

Further, he discussed the difference between a money bill and a financial bill, stating that consolidated fund matters would be covered by financial bills.

He also discussed Article 117(1) in this context.

He stated that the Aadhaar Act could not have been passed as a financial bill.

Further, he discussed the doctrine of severability and whether certain portions of the Aadhaar Act could be removed.

He stated that the doctrine of severability could only apply if a statute was valid and certain portions are invalid. He stated that if the rest of the statute ‘made sense’ and was valid, it could be retained. However, in this instance, the statute itself was invalid, and relying on the Kihoto Hollohan case, he stated that a statute that was fatal at its inception could not be saved.

Mr. Datar also discussed the Mangalore Ganesh Beedi works case and subsequently Article 110(b) of the constitution.

Further, he discussed the issue of linking bank accounts to Aadhaar.

He stated that millions of bank accounts have already linked to Aadhaar and that permanent linking did not seem to serve a purpose and that accounts should be delinked once determination was over.

Next, senior counsel P.C. Chidambaram commenced his rejoinder. He discussed the issue of the Aadhaar Act being passed as a money bill.

He started off by discussing the interpretation of ‘only’ under Article 110(1), and went on to discuss how clause (g) must be read narrowly.

Lastly, he stated that a non-money bill being passed as a money bill would effectively limit the power of the Parliament, by disallowing review, which should not be condoned by the Court. He also stated that the doctrine of severability would not hold credence if the legislature was unconstitutional to begin with. Further, he discussed how the doctrine of pith and substance would not be applicable to bills passed under Article 110.

Next, senior counsel K.V. Viswanathan commenced his rejoinder. He discussed the theories of proportionality and balancing of rights. He stated that the balancing of rights proposition by the respondents was incorrect, and that fundamental rights would not survive. Further he discussed exception handling and the problem with making vested rights conditional on Section 7 of the Act. He also stated that citizens should not have to face the burden brought about by systems for ‘targeted and efficient delivery’.

Lastly, senior counsel P.V. Surendranath discussed the problem with excessive delegation.

The hearing concluded on the 10^th of May and the matter is now reserved for judgment.

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