Day 11 Arguments

February 20th 2018

Continuing his arguments from Day 10, Mr. Gopal Subramanium submitted that Aadhaar Act prioritised a digital person over a real person, and constitutional entitlements had become contingent upon a play of algorithm – which is beyond the control of even the State. The negation of real identity through an algorithm with no accountability was unjust and a devaluation of real identity. The inability to align with justice, according to Mr. Subramanium, is an overarching feature of Aadhaar programme.

 

Mr. Subramanium laid out the broad outlines of the arguments which he would be developing over the next few days:

• Reading the judgments in Puttaswamy vs. UOI, Subramanian Swamy vs. UOI, and NALSA vs. UOI, together, it was clear that Articles 14, 19 and 21 protect the dignity of individuals, and any law violating it was unconstitutional.
• An important consequence of the Puttaswamy judgement was that the rights of individuals had eminence over the concerns of the State.
• Any law had to satisfy the test of substantial procedural reasonableness.
• Article 14 encompassed and protected the basic features of the Constitution.
• There could not be a waiver of a fundamental right.
• The Aadhaar Act did not disclose a legitimate aim to be pursued, nor did it provide legitimate means to achieve the end.
• The Aadhaar Act allowed excessive delegation and thus violated Article 14.
• The Aadhaar Act could not retrospectively cure the abrogation of Fundamental Rights.
• The means employed under this Act were flawed as algorithmic behaviour could not guarantee the protection of fundamental rights.
• Even for the purpose of conception, the potential harm was too grave, and the Act did not fulfil the rigorous standards that needed to be met.

 

Mr. Subramanium began his arguments by pointing out that existential proof, which was within the domain of the person, cannot be ‘judgmentalised’ by the State through this Act and through algorithms. He noted that Judicial Review, a basic feature of the Constitution, held all actors in the State accountable. But justice was not possible if no one was held accountable, and in this case, an algorithmic mistake or a computer glitch could not be brought to the Court of Law to seek justice. This inability to approach the courts of justice, he argued, was the overarching flaw of this Act. Mr. Subramanium further argued that in absence of a data protection law, the Aadhaar Act could not survive. The Act also failed to satisfy the principles laid down in In Re Delhi Laws Act, Kesavananda Bharati vs. State of Kerala, Menaka Gandhi vs. UOI, and Puttaswamy.

 

Mr. Subramanium argued that fundamental rights could not be subject to the vicissitudes of probability. The Constitution protected us from such vicissitudes, but the Aadhaar Act was subjecting individuals to them. The capacity to aggregate the database, which was possible due to the centralisation of data, made the dangers worse. Citizens would feel monitored and would feel under duress to undertake repeated authentication. To address the Court’s point on how the Aadhaar scheme furthered Part IV of the Constitution, Mr. Subramanium pointed out that the State asking individuals to reveal themselves was the anathema of affirmative action. By doing so, individuals were being reduced to “a flock of sheep” that could be put in a black box that required authentication.

 

Mr. Subramanium read out excerpts from the Puttaswamy judgement and made the following points:

• The golden thread that linked Articles 14, 19 and 21, was dignity. The Aadhaar act violated this core idea of dignity. The survival of existential as well as transactional identity had to be protected as an inalienable right, flowing from dignity.
• Discreet silos of human nature could be connected by a technological apparatus. But human identity transcended algorithms and could not be enmeshed inside it.
• A homogenised standard of identity was anathema to the Constitution which itself respected different identities.
• The exercise of fundamental rights could not be conditional on proving one’s identity. Moreover, identification through a number was completely destructive to the dignity of a person. Also, even in cases with a priori grounds of state interest (i.e. search and seizure cases under the Income Tax Act and the NDPS Act), courts had strictly construed ‘state interest’ (See Canara Bank Case).
• Each of those ideas which were held to be part of the basic structure of the Constitution in  Kesavananda Bharati v State of Kerala were in fact facets of Article 14, and the Aadhaar Act violated each facet. For instance, there was no redressal mechanism for the exclusion being perpetrated due to the Aadhaar scheme, which violated judicial review – a part of the basic structure of the Constitution.
• Any Act which led to discrimination, even with the of best intentions, was unconstitutional. Our Constitution had incorporated principles from both schools of human identity – Dworkin’s school of protected rights and Joseph Raz’s school of excluded reason – and the Aadhaar Act betrayed both these conceptions.

 

Mr. Subramanium also drew the court’s attention to German constitutional cases on Census (1983) and Micro-census (1969), which established the Basic Right on Informational Self-Determination and struck down laws for violating privacy. He concluded his arguments for the day by posing the question: It is to be seen if the Aadhaar Act violated the right to privacy, which is the quintessence of the Puttaswamy judgement and was an integral part of dignity.

 

Mr. Subramanium will be continuing his arguments on 21.02.2018.