Judgement day: Arguements for and against Aadhaar

Thursday’s 4-1 majority judgement in favour of UIDAI’s identity programme was delivered more than three months after arguements concluded in the apex court. A brief recap:

The Justice KS Puttaswamy (Retd) and another versus the Union of India was the second longest case to be argued before the Supreme Court stretching over 38 hearings spread over five months. It started on 17 January 2018 and concluded on 10 May 2018. The apex court subsequently reserved its judgement, which was delivered on Thursday, September 26.

A battery of leading lawyers argued on behalf of the 27 petitioners who were represented by Shyam Divan, Gopal Subramanium, Kapil Sibal, KV Vishwanathan, Meenakshi Arora, Sajan Poovayya, Arvind Datar, P. Chidambaram, Anand Grover, CU Singh, PV Surendranath and Sanjay Hegde.

The respondents - the Union of India, the states and the UIDAI - were represented by the Attorney General KK Venugopal, Additional Solicitor General, Tushar Mehta, Senior Advocates Rakesh Dwivedi, Neeraj Kishan Kaul and Jayant Bhushan, Advocates Gopal Sankaranarayanan and Zoheb Hossain.

The extensive arguements before the five judge Constitutional Bench headed by Chief Justice Dipak Misra examined the Constitutional validity or otherwise of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016. Other then the legal challenges to the Aadhaar Act, several other issues were addressed including the scheme itself and whether it should be voluntary or mandatory, the logistic problems associated with it and the misuse of Aadhaar. Here are some of the key arguements that were put before the court:

Against Aadhaar

* The Aadhaar Act was passed as a money bill. Under the Constitution such a bill can “only” deal with issues like imposing taxes, governmental borrowing of money, or withdrawing money from the consolidated fund of India. Any bill incorrectly passed as a Money Bill strikes at the very root of one of the basic features of the Constitution - federalism.

* Aadhaar enrollment and authentication processes are suspect. Ever since 2009, when the process was started, to 2016 when the Aadhar Act was passed, data collection happened without a law in place. It was carried out by private agencies and others without adequate qualification or UIDAI control. More than 49,000 enrollers were blacklisted. Data collection was not only suspect, there have been several instances of it being sold or leaked.

* Section 59 of the Aadhaar Act provided retrospective validity to Aadhaar. Violation of a fundamental right cannot be validated in retrospect.

* Collection of biometric information violates a person’s fundamental right to bodily integrity.

* Making governmental benefits and welfare schemes conditional to Aadhaar enrolment amounts to violation of constitutional rights.

* Biometric authentication only ensures there is no identity fraud. It cannot ensure that subsidies have reached the actual recipients. In fact, Aadhaar has been causing exclusion rather than inclusion with diversion of food grains and pensions.

* Aadhaar records and footprints allow the real time tracking and surveillance of citizens, thus raising privacy concerns. Judgements abroad were cited to show how such surveillance is detrimental to democracy.

* Aadhaar is violative of choice and self-determination spelt out in Article 21 of the Constitution. Citizens must have the right to decide whether they wish to participate in the government’s information collection programme.

* Linking of Aadhaar and bank accounts being made mandatory makes such accounts where linkage is not done non-operational. Making it mandatory is denying citizens their choice.

* Consent provisions in the Aadhaar Act are unclear because the biometric authentication system has expanded beyond its original mandate. Aadhaar linking has become essential for a host of activities ranging from school admissions and pensions to applying for mobile SIM cards. Each time the authentication process is carried out the citizen is unaware of what happens to the personal data.

* Banks and telecom companies were seeding Aadhaar to bank accounts and telephone numbers without an individual’s consent.

* Aadhaar is not a voluntary scheme. It has been made mandatory through several notifications. Statutory entitlements are thus denied without enrolment.

* The Aadhaar Act must be struck down as unconstitutional.

For Aadhaar

* The unique identity system has been set up with an investment of Rs 9,000 crore. Several options, including smart cards were considered but a centralised system with de-duplication processes was finally selected.

* Aadhaar was designed to ensure least possible violation of privacy.

* It is a well thought out and secure system. Enrolment and authentication processes were always of high quality. Data is secure.

* Individual rights cannot be made subordinate to distributive justice. Aadhaar has been introduced to stem corruption and diversion of funds meant for the people. As much as Rs 1,000 crore was being lost to middlemen and corruption.

* It was a question of right to life versus a right to privacy. In such a situation, the former must be given due weightage. Poverty was also a violation of human rights. Given that, official identification was also a fundamental human right.

* There were no complaints of exclusion from the public. These claims were only being made by NGOs and other vested interests.

* UIDAI does not track IP addresses or GPS locations.

* Linking bank accounts with Aadhaar was required to prevent impersonation. Also disabling unlinked bank accounts was not a violation of right to property as it was only a reasonable restriction on that right since money was not being seized by the State.

* Bank accounts were being linked to prevent money laundering.

* Thanks to Aadhaar-PAN linkage, 11.35 lakh fake PAN cards were detected.

* SIM cards were linked to Aadhaar to ensure that terrorists don’t gain access to mobile connections.

* Though biometrics could be extended to DNA in the future, it was speculative to consider the consequences of such a move which will in any case, be subject to judicial review.

* Like the Right To Information (RTI) Act, Aadhaar is a case of limited privacy restrictions in public interest. It was necessary to prevent black money, money laundering and the misuse and diversion of welfare funds.

* Aadhaar was, in its essence, a money bill.

* Defects in a law/Act must be corrected rather than struck down was the plea of the petitioners.

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