Aadhaar: Analysis of first 13 days

The arguments in the Aadhaar Act Case before the Supreme Court over the span of 13 days has brought up several issues. In this post, we review the key arguments and postulations raised by three counsels – Mr. Shyam Divan, Mr. Kapil Sibal, and Mr. Gopal Subramanium against the Aadhaar Act.

Aadhaar Act is based on a Probabilistic System

All counsels have argued that the Aadhaar scheme was not based on a deterministic identity system but on a probabilistic system. They have argued that making the rights and entitlements of citizens contingent on a probabilistic system which is error-prone is wrong. Mr. Shyam Divan submitted that the low-quality machines used for authentication had led to the exclusion of genuine beneficiaries, substantiating his arguments with several instances of deaths due to starvation in Jharkhand. Mr. Kapil Sibal submitted that 1 in 146 authentications were rejected due to the probabilistic nature of the authenticating system. He also pointed out that fingerprints of children, older citizens, and manual labourers, change over time and this leads to denial of services to which these individuals are entitled.

Aadhaar enables the creation of a Surveillance State

Mr. Shyam Divan has charged the State with creating an architecture that enabled real-time surveillance. He has argued that the Aadhaar scheme empowered the State to collect data over a period of time and facilitated the profiling of individuals and communities. He has relied on Zakharov v Russia and Digital Rights Ireland v Minister for Communications, which struck down mass surveillance mechanisms and laws, as they exceeded proportionality. With respect to Aadhaar, Mr. Divan has argued that the data aggregation capacity was disproportionate to the propounded social goals, and it also violated privacy.

Constitutionally invalid Provisions in the Aadhaar Act

All three counsels have assailed various provisions of the Aadhaar Act as over-reaching, arbitrary, and disproportionate to the objectives of the Aadhaar Act.

Section 3 uses the phrase ‘shall be entitled to obtain.’, which meant that getting an Aadhaar number was a right, not an obligation. While Section 3 of the Act made Aadhaar voluntary, Sections 4(3) and 8 made authentication necessary. Banks and mobile companies asking for Aadhaar authentication made the consent outlined under Section 8 illusory.

Section 7, which made Aadhaar mandatory to receive benefits or services, effectively negated the individual’s right to identify herself/himself using reasonable alternatives. Notifications introduced under this section did not stand the test of constitutionality as they made entitlements contingent on the relinquishment of certain constitutional rights.

Vast powers bestowed on the UIDAI under the Aadhaar Act, such as the power to add biometric indicators, the power to contract out the security of the database (which raised security concerns), the power to enter into Memoranda of Understanding with public and private entities, and the power to deactivate an Aadhaar number, effectively deprived an individual of all Civil Rights.

Section 32 allowed the creation and maintenance of a log of authentication. Such collection of data violated the fundamental right to privacy. Section 57 of the Aadhaar Act has been worded in a manner that could broaden the scope and extent of such surveillance to include private players and to purposes other than disbursement of subsidies. Section 57 has been argued to be a carte blanche provision to extend the Aadhaar to any scheme by anyone.

Violation of Fundamental Rights

Dignity

The three counsels have argued that the Aadhaar architecture struck at the dignity of an individual. Dignity is a fundamental right as had been held in Puttaswamy vs. UOI, Subramanian Swamy vs. UOI, and NALSA vs. UOI. Dignity is the core of the right to privacy, and Aadhaar violated dignity by making essential entitlements dependent on an algorithm. Mr. Gopal Subramanium has argued that the golden thread that linked Articles 14, 19 and 21, was dignity. It has also been argued that existential as well as transactional identity had to be protected as an inalienable right flowing from dignity.

Rule of Law

Mr. Divan has argued that the manner in which the Aadhaar programme has been bulldozed by the States violated the Rule of Law. For instance – the 2009 notification constituting the UIDAI had no mention of collection of biometrics or fingerprints, yet the UIDAI began biometric data collection, fingerprint collection and iris scanning without any statutory backing. Supreme Court judgments since 1975 have held that privacy could not be curtailed in the absence of law. The collection of biometrics, data sharing, and centralisation of the data had been carried out without a statutory law. The programme had also brazenly violated Supreme Court’s interim orders that Aadhaar could not be made mandatory for any services.

Other Arguments

Mr. Shyam Divan has pointed out that the justifications made by the State for Aadhaar were untrue. Affidavits filed by the UIDAI, and RTI responses showed that only 0.03% (little over 2 lakhs) of those enrolled used the ‘introducer’ system, which meant that most people already had a legal proof of identity other than Aadhaar. The claim of saving 3000 crores (2015- 2016) and 11741 Crores (2016-2017) by identifying fake or duplicated MGNREGA cards due to Aadhaar was also contradicted as fake MGNREGA job cards were only about 63,000 in number yielded a maximum saving of 127 crores – far less than the claimed savings of 3000 crores. Savings of 14000 crore on Aadhar-LPG linkage were also greatly exaggerated, as Minutes of Cabinet Secretary Meetings pegged the number at 91 crores.

Mr. Sibal suggested that Aadhaar be used as ID Cards, but authentication be made optional. He also suggested that the biometric data should be on the card so that there was no question of metadata. Most importantly, the citizens should have the choice of providing alternatives. He termed Aadhaar as the State’s right to information on the citizens.

Supreme Court is to resume hearings in this case on March 6th 2018. Mr. Arvind Datar will commence his arguments.