'Aadhaar skews relationship between citizen, State,' petitioners' advocate tells Supreme Court

Yesterday, a five judge Constitution Bench of the Supreme Court-headed by Chief Justice of India Dipak Misra-started final hearing on a clutch of petitions challenging the constitutional validity of the Aadhaar Act, taking the five year old drama to its final act. Here's a summary of events.

In his opening statement, senior counsel Shyam Divan, who appeared for petitioners, reportedly said that the case at hand was unique because the Aadhaar project itself was without precedent-"no democratic society has adopted" anything like it. "There are few judicial precedents to guide us. The closest foreign cases have all been decided in favour of the citizens, repelling the invasive programmes by the State."

Divan is representing several petitioners, including former Karnataka High Court judge Justice KS Puttaswamy, several activists Aruna Roy, Shantha Sinha and veteran CPI(M) leader VS Achuthanandan.

He said that the petitioners are certain that if the Aadhaar Act and the programme were allowed to operate "unimpeded", it would "hollow out" the Constitution.

According to him, through a succession of "marketing stratagems" and by employing "smoke and mirrors", the government has rolled out a "little understood" programme that seeks to "tether every resident of India to an electronic leash". He argued that "This leash is connected to a central database that is designed to track transactions across the life of the citizen. This record will enable the State to profile citizens, track their movements, assess their habits and silently influence their behaviour. Over time, the profiling enables the State to stifle dissent and influence political decision making."

Divan maintained that Aadhaar had "empowered" the State with "a switch with which it can cause civil death of an individual". According to him, the Constitution balances rights of an individual against the State interest but Aadhaar upsets this balance and "skews the relationship" between the citizen and the State. "A citizen's Constitution will transform into a State Constitution" he said, adding that, "Aadhaar, if allowed to roll out unimpeded reduces citizens to servitude."

He also put the spotlight on sundry Aadhaar problems. Calling the system of verification-read fingerprints, iris scan and photograph-required by UIDAI "probabilistic", that is, authentication may or may not happen, the senior counsel said it lead to excluding people from services and questioned "How can my constitutional or statutory rights be probabilistic?" To support his contention that Aadhaar acts as an instrument of exclusion, Divan claimed that estimated failure of biometrics could be as high as 15% due to a large chunk of population being dependent on manual labour.

He further contended that there was "no government control at all" when biometric data was initially being collected under an executive notification. At this point, Justice D.Y. Chandrachud, one of the five judges on the Bench, interjected and asked Divan, "Is your contention going to be that all data prior to 2014 has no legal standing at all?" Justice A.K. Sikri followed up with another question: "Are you saying that whatever was done between 2009 and 2016 needs to be nullified?"

Divan replied in the affirmative, adding "when you are picking sensitive data from people, there has to be some minimum governance...Defects of the past cannot be cured retrospectively."

When Divan invoked the Supreme Court judgment on the right to privacy to buttress his arguments, Justice Chandrachud reportedly said: "There are two separate cases. Firstly, what we dealt with in the privacy judgment. Secondly, whether your biometric data, which is held in the central depository, is disclosed when you are authenticated. The answer to the latter is "no".

Justice Sikri also questioned whether Aadhaar was not similar to the biometric authentication required for border control in the US. Divan answered in the negative saying that in the case of US border control, the requirement of biometrics ends there unlike Aadhaar where the electronic trail happens throughout and becomes "a pervasive system".

To Justice Chandrachud's question whether the petitioners were worried that the "state uses the data", Divan answered that "There is a danger of a democratic state turning into a totalitarian one. Section 57 of the Act of 2016 could give rise to a surveillance society".

Significantly, Justice Chandrachud raised the question "Can't the State have a countervailing interest? For instance, there are many schools without students...They (State) may say all we are trying to do is to ensure that money is going where it ought to...If you are depending on social welfare benefits, equally the State has countervailing interests to ensure that they reach the right people." The Chief Justice, in a similar vein, stated that "Article 21 confers fundamental rights which include the right to education. To ensure that, they (State) must ensure that teachers and students come to school" adding that the Aadhaar scheme served as a means of checking that.

Divan countered that any such savings were minimal. Besides, such an architecture "is not permissible and is unconstitutional". The petitioners also questioned the introduction of Aadhaar Act as a Money Bill in the Lok Sabha, arguing that the law must fall for this reason alone since "it is a colourable legislation". Senior advocates, P. Chidambaram and Arvind Datar, who were representing two of the petitioners separately, explained how the Aadhaar Act 2016 fails to fulfil the criteria for a money bill. They also cited two landmark Supreme Court cases (Kihoto Hollohan and Rajam Ram Pal) and said that the apex court has the power to review "any proceedings inside the legislative chamber" on the basis of an illegality.

The apex court commenced Day 2 of the hearing at 11.30 am today.

(With PTI inputs)