The Aadhaar litigation will go down in history for being the second longest hearing in the Supreme Court of India. The case was heard for 38 days over a span of four months in which lawyers, activists and academicians passionately argued for and against the constitutional validity of the Aadhar programme. A 5-judge bench consisting of the Chief Justice Dipak Misra, Justice D Y Chandrachud, Justice A M Sikri, Justice A M Khanwilkar and Justice Ashok Bhushan began hearing the matter on the 17th of January 2018.
The post aims to capture the important arguments raised by the parties in the case and provide a gist of the questions in front of the Court.
What were the challenges raised against Aadhaar?
The petitioners challenge against the Aadhaar Project and Aadhaar Act, was primarily on the ground that it violated their Right to Privacy under Article 21. In addition to this, there were arguments made on the exclusion of large sections of the population from receiving beneficiary entitlements, the passing of the Act as a money Bill among other things.
That Aadhaar violated individual rights under Article 21
Senior advocate Shyam Divan initiated the arguments for the petitioners. He argued that the Aadhaar project had been collecting biometric data without statutory backing even before the enactment of the Aadhaar Act in 2016. The enrolment and subsequent authentication were conducted without providing adequate information about the project to those enrolling with it. Aadhaar was made mandatory to access minimum entitlements such as MNREGA wages, mid-day meals, pensions and LPG subsidies, among others. Each time an individual would want to avail the benefits their identity had to be authenticated, which meant subjecting themselves to biometric scanning. The verification of took place through the Central Identities Data Repository, which collected all of this information in one central database. The scope of the scheme started to increase with the various government departments mandating Aadhaar seeding such as with those related to their PAN Card, mutual funds, operating a cell phone, et all. He argued that without Aadhaar people were denied services, despite the Act and a Court order explicitly stating that in the absence of Aadhaar, an individual could provide any another form of document to prove their identity. Senior advocate Kapil Sibal argued that the project violated individual dignity protected under article 21, since they were forced to use Aadhaar. Senior advocate Gopal Subramanium also argued that the Aadhaar scheme was hurtful to the dignity of marginalised sections of the society, as they had to reveal themselves as marginalised to avail any benefits under it.
Mr. Divan further contended that individual privacy was being violated as the project did not fulfil the three-fold requirement laid down by Chandrachud J. in the majority opinion of Puttaswamy v. Union of India. The test as laid down is that:
- There needs to be a statutory backing for the restriction on privacy,
- The State must have a reasonable objective and
- The objective should be reached by a reasonable means.
The objective of the Act was to ensure that the social welfare schemes are disbursed efficiently. He argued that project, however did not fulfill the test because its scale and scope extended far beyond the objective stated in the Act. Aadhaar was being used to create a surveillance state. Any and all authentication that was required for Aadhaar had to necessarily go through the CIDR, which stored and maintained authentication records of all individuals. With the increasing scope of the scheme to include even private parties now, telecom operators, payment banks, digital wallets, etc, there was a large stream of data reaching the CIDR. The government had previously stored and maintained a large quantity of data about individuals. However, the information was maintained in silos with little to no exchange of information taking place between them. With Aadhaar these boundaries were dissolved, UIDAI could access data about all citizens at any given time. The biometric devices used for authentication provided the location, purpose and nature of transaction taking place, which would require such authentication. When the digital trails of all individuals were collected in the form of metadata, it could provide the complete picture of their lives, from their travel details (IRCTC also required passengers to use Aadhaar while booking train tickets), bank accounts, phone number, subsidies availed, among the many different activities that a person undertakes. He argued that this left no zone of activity where the citizen was not under the gaze of the State. This would lead to a chilling effect on the citizen’s liberties among others. Especially, since there was no proportionality to the increasing usage of Aadhaar. This he argued was in violation of the citizens’ right to privacy.
That Aadhaar was leading to exclusion of entitled beneficiaries
Mr. Divan argued that the claims made by the State with regards to the prevention of leakages were overstated and unbacked by any evidence. Furthermore, the government did not conduct the necessary due diligence on the feasibility of using biometrics, since it is a probabilistic science. That using it would not be viable for usage for a country as big as ours. Contending further that when it was used for even a section of 1.2 billion people, serious problems started to emerge questioning the very validity of using biometrics as the measure for denying and granting entitlements. There were several reported cases of biometric mismatch, resulting in people getting excluded from welfare schemes. Apart from this he also contended that there were several practical difficulties that arose when biometrics were authenticated through internet-enabled devices in areas with weak network availability. The problems began at the level of enrolment, where there are several reported cases of the registrars’ fingerprints getting registered instead of that of the card-holder. The system failed to detect this anomaly and registered the information.
Mr. Sibal also raised the argument that several individuals were losing their entitlements due to problems arising out of the blind faith in biometrics. He raised the point that biometrics do not stay constant over a person’s lifetime, the fingerprints of children, aged individuals and manual labourers are bound to change. This is especially troubling since in more cases than not, these individuals are the intended beneficiaries of the scheme. The entitlements, were supposed to be based on the status of the individuals, but were being denied due to a system with serious design and procedural flaws, despite the individual’s ability to prove their identity through alternative means. This the senior counsel argued would constitute a violation of their Article 14 rights of equal protection.
That passing the Aadhaar Act as a Money Bill was unconstitutional
Senior Advocate Arvind Datar argued that the Bill introduced was not a Money Bill in terms of Article 110 of the Constitution. According to him, the stated objective of the Act was to deliver subsidies, benefits and services expenditure of which would come from the Consolidated Fund of India (CFI). The scope of the Act, however was to legitimise the Aadhaar project, which had started to cover almost all activities of civilian life. Aadhaar was being used for authenticating and seeding with databases, in various departments and private entities which did not receive funds from the CFI, such as for PAN cards, IRCTC, payment banks, among others. This was outside the scope of Article 110, which states that ‘only’ those matters which deal with the CFI would fall under the category of a money bill. The Act was being used to govern aspects which were not related to CFI, such as those related to non-state actors. This according to him raised several questions with regards to the procedure followed in passing the Bill. Senior advocate P. Chidambaram also argued that since the legislative process was colourable and there was scope for harm to rights under Article III, judicial review should be allowed into the decision of the Speaker. The Act would then be liable to be struck down, as it had not passed through appropriate legislative procedure.
That Aadhaar’s technical infrastructure was flawed and harmful to security of citizen’s data
Mr. Divan also contended that the architecture of the Aadhaar system was not viable to securely conduct such a massive collection and maintenance of the sensitive personal data. The enrolment agencies were selected without any background checks, with little to no accountability, since UIDAI had only signed MoUs with them. The biometric devices and the technological hardware was designed by foreign corporations, had continued control over the devices and data stored in the servers as evidenced by the Agreement between UIDAI and the foreign corporation. They also referred to many ‘leaks’ of Aadhaar data by government departments. The system is also highly vulnerable to attack since all the information was stored in one centralised location making it easier to attack. It is also possible to undertake ‘man-in-the-middle’ attacks on the hardware if the requesting agency or the authentication agency has mala fide intentions. The system according to him could not be used to store the sensitive personal information of individuals, hence the project and not just the Act was liable to be struck down.
What was the Government’s defense of Aadhaar?
The arguments for constitutional validity of the Aadhaar Act, 2016 were made Day 20 onwards.
The Right to Life and the Right to Privacy
KK Venugopal, the Attorney General of India (AG), began his submissions by stating that the Right to Privacy must give way to the Right to Life. It was stated that an investment of Rs. 9000 crores was made with respect to the Aadhaar Project, which had garnered the support of the World Bank too. While pointing out the investment made Mr. Venugopal also mentioned that the cost of making a single Aadhaar card was less than US$1. This tremendous investment was made after due consideration of alternate schemes such as smart cards and security numbers. He argued that declaring Aadhaar constitutionally invalid would cause an incredible loss to the government.
It was further argued by the Attorney General that official identification is a basic human right. The Aadhaar card in providing for an identity card based on residence in the country helps secure this basic right. The benefits that are accrued due to official identification was recognized to be poverty alleviation, increasing participation in the electoral process and economic development. He argued that in lieu of ensuring the same, the Right to Privacy must give way to the idea of distributive justice.
Post this the AG resumed his arguments. He went on to argue that the Aadhaar Act was fair, reasonable and just law. The proportionality argument made in favor of Aadhaar stated that considering keeping up with technological advancements, Aadhaar was the only way to prevent economic fraud and money laundering. Aadhaar was also mooted to be the panacea of India’s problem of pilferage. Mr. Venugopal stated that the recording of biometric information was a minor inconvenience that furthered a much larger cause.
With respect to the contention raised by the petitioners about the collection of fingerprints, the AG argued that fingerprint scanning is no longer a practice that remains exclusive to the attribution of criminality but rather has moved towards a commonplace idea of merely record keeping. Further he stated that there was no scope of misuse of this data for tracking individuals as this is used only for identification and not surveillance by the government.
Speaking on the intersection of the Right to Privacy and the Right to Information, Senior Counsel Tushar Mehta on behalf of the UIDAI, argued that since RTI was in favor of larger public interest, it would trump the Right to Privacy. In favor of this, he stated Narayan Dutt Tiwari v. Rohit Shekhar and X v. Hospital Z, two cases which recognized that privacy was not sacrosanct and could be compromised for public interest.
The Aadhaar infrastructure and Data Collection
The next set of submissions came from the UIDAI CEO Ajay Bhushan Pandey who focused on the infrastructure of the Aadhaar scheme. It was argued by Mr. Pandey that the Aadhaar infrastructure adopts privacy by design. He focused on the high-quality security standards of the Aadhaar database and continually focused on the idea of how the silos of information available in the database cannot be merged to create detailed data sets about individuals who are enrolled with the scheme.
On day 26, the hearings moved to the validity of the data collected prior to the 2016 Aadhaar Act. Mr. Venugopal argued that Section 59 of the Aadhaar Act covered retrospective application of the Act wherein it legitimized and legalized the past actions done in pursuance of fulfilling the purpose of this Statute.
Post this, Senior Advocate Rakesh Dwivedi began his arguments by mentioning that Aadhaar promoted the idea of a single identity. He stated that the purpose of Aadhaar was authentication of data and not analysis of it. Speaking of the technological safeguards that Aadhaar provided, he said that even the European Union’s data protection laws did not measure up to the standards created by Aadhaar and that all biometrics collected by Aadhaar was encrypted. Speaking about the technological shortcomings of the scheme, Mr. Dwivedi suggested that it would be more prudent to ‘tighten the nuts and bolts’ of it than to scrap a 9000-crore scheme.
Advantages of Aadhar
Senior Counsel, Tushar Mehta attributed the validity of Aadhaar based on its intention to prevent money laundering. With the amendments to the Prevention of Money Laundering Act (PMLA) that made it mandatory to link Aadhaar to bank accounts, Mr. Mehta stated, the government was taking stringent steps to address the evil of money laundering and corruption. Taking this argument further and justifying the vires of the amendment, Mr. Mehta stated the non-linking of existing bank accounts with Aadhaar would not lead to the closure of bank accounts but would only lead to their non-functionality until the linkage is done. Additionally, he went on to argue that money laundering raised serious concerns about terrorism and therefore it was necessary to link Aadhaar to bank accounts as it prevented the same.
Senior advocate Neeraj Kishan Kaul brought in the most interesting perspective on the nature of identification provided by Aadhaar by stating that women, migrants will have secured identity because of the presence of Aadhaar. Advocate Zoheb Hossain proposed that the aim of Aadhaar is make socio-economic rights justiciable and the balance that needs to be achieved is that which exist between socio-economic and civil-political rights.
Constitutional Validity of the Aadhaar Act, 2016 and the Executive Intention
The next argument put forth went on to attack the Apex Court for presuming the intentions of the Executive. In this argument the AG stated that the Court must make its judgment on Aadhaar based on what it is and not it could be become. The AG stated that this nature of adjudication would undercut the idea of balance of powers which is so fundamental to the Indian democracy.
Addressing the concerns raised against Aadhaar in light of the Puttaswamy (Privacy) judgment, Mr. Venugopal argued that the Aadhaar Act meets the requirements espoused by judgment for the imposition of a reasonable restriction.
Further he justified the mechanism used by Aadhaar as being carefully curated keeping in mind the advances in technology. This mechanism, he repeated, received the praise of the World Bank and the United Nations.
Finally, the AG Mr. Venugopal came back on the 35th day of the petition hearing to argue that the Aadhaar Act was indeed a money bill. By pointing out that Aadhaar aimed for “targeted delivery of services” which pertains the expenditure of funds, thereby bringing it within the ambit of a money bill under Article 110 of the Indian Constitution.
It goes without saying that today’s judgment holds the potential to considerably alter the relationship between the State and citizenry and will have a significant bearing on the Republic in the years to come.