Day 3 Arguments

January 23rd 2018

On 23.1.2018, the Supreme Court continued hearing oral arguments.

On the first day of the case, Mr. Shyam Divan, representing the petitioners, made broad arguments against the Aadhaar programme as well as the Act. He argued that the architecture did not have adequate safeguards for data security and gave several instances of the programme being carried out in violation of the past court orders.

On the second day of arguments, Mr. Divan reiterated that the entities tasked with collecting information for the Aadhaar architecture did not have adequate qualifications or training to ensure data security, and gave several instances of the biometrics gathered incorrectly that resulted in valid beneficiaries being turned away. He argued that the Aadhaar programme was patently defective as citizens were being compelled to give sensitive information.

The third day of arguments commenced on 23.1.2018, with Mr Divan reading out excerpts from the Right to Privacy judgement. Through the excerpts, he argued that privacy is the constitutive core of human dignity and the foundation of ordered liberty. It recognised individuals’ right to control vital aspects of their life and these were not lost or surrendered merely by being in a public place. He emphasised that the Right to Privacy judgment had said that the interpretation of privacy must be flexible to meet evolving challenges. He enumerated the various characteristics and aspects of privacy that he drew from this judgment:

1. Privacy had always been a fundamental right.
2. Privacy was a natural right. It had to be protected in order so everyone would be able to enjoy any other fundamental right, and it included the right to control the dissemination of information.
3. The sanctity of privacy was in its relationship with dignity and was a postulate of human dignity.
4. Privacy was a foundational right and was integral to liberty and freedom.
5. The ‘negative’ aspect of privacy protected the individual against its violation by the State. The positive aspect cast an obligation upon the State to protect individuals from non-State actors.
6. Privacy was not an elitist concept.
7. Knowledge was power and when information which was heretofore siloed was aggregated, it threatened freedom.
8. Privacy could certainly be restricted, but only by a law that was just, fair, and reasonable.

After lunch, the bench reconvened, and Mr. Divan began Section-wise analysis of the Aadhaar Act. He read out the statement of the objectives of the Aadhaar Act – which required proof of identity, identification of beneficiaries, and transfer of benefits. Mr. Divan then argued that as Section 3 used the phrase ‘shall be entitled to obtain.’ it followed that getting an Aadhaar number was a right, not an obligation. He reiterated that the non-mandatory character was also reflected by the counselling requirement in Section 3. Mr. Divan emphasised that the enrollment procedure had been completely compromised and had no oversight, since, under Section 4(3), the data could be used as proof of identity for any purpose. He argued that although Section 6 provided for updating of data, assuming that biometric information changed over time, which compromised the idea of uniqueness. He also argued that Section 7 effectively negated the individual’s right to identify herself/himself in a reasonable alternative manner as it allowed for Aadhaar to be made mandatory to receive benefits or services.

Mr. Divan pointed out the vast powers given to the UIDAI, i.e. 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. This effectively deprived an individual of all Civil Rights.

On the issue of information sharing, Chandrachud J enquired how a breach of statutory provision would affect its constitutionality. Mr. Divan responded that the statute was unconstitutional because it sanctified the Aadhaar program, which was incompatible with the idea of a free democratic republic. He emphasised that an individual was entitled to choose the method by which to identify himself/herself, and should not be compelled to submit to a particular kind of identification. Chandrachud J also wondered if the problem of aggregation of data sets could be obviated by specifying in law that the data could only be used for the purpose for which it was collected? Mr. Divan argued that in a democracy, there had be some trust between the State and the individual. He reiterated that an individual had be given the choice of submitting an alternative identification and the State had to respect and allow this choice, if the alternative presented was reasonable.

Mr. Divan emphasised that the architecture of the Aadhaar Act enabled a Surveillance State. Chandrachud J enquired how in a networked world, where private parties tracked everyone in great detail, did the interpolation of an Aadhaar number really change anything? Mr. Divan pointed out that the difference between private parties and the State was the choice of opting out. In response, Chandrachud J expressed doubt over the true extent of this choice, even with private parties. Sikri J questioned the harm caused by sharing just an Aadhaar number, without biometrics. Mr. Divan pointed out that one might not want the number distributed widely, especially as this could compromise data safety when used with other publicly available information.

The matter will be next heard on 24.01.2018.