In October 2015, a 3-judge bench of the Supreme Court of India referred challenges to the Aadhaar program to a constitution bench. One of the primary concerns of this petition was to decide on the existence of a fundamental right to privacy, which has since been upheld. Other similar petitions, concerned with the legitimacy of Aadhaar had been tagged with this petition. While the existence of the fundamental right to privacy has been upheld, challenges against the Aadhaar programme and linking services to this programme were yet to be adjudicated upon.
The matter is being heard in front of a constitutional bench, comprising of Chief Justice Dipak Misra, Justice Sikri, Justice Khanwilkar, Justice Chandrachud and Justice Ashok Bhushan.
Mr. Divan continued discussing the example of the Kerala Dairy Farmers Welfare Fund, and clarified the issue of client IP’s and client IDs. A one-page note was submitted by Mr. Divan to clarify certain related concepts.
He revisited the discussion on tracking and the accuracy with which a citizen could be tracked by the UIDAI.
Justice Sikri stated that our phones could track our location regardless.
Mr. Divan responded, stating that there were certain apps that may have access to geographic location like maps or a weather app, however, it would not be the same as the state having such information.
Justice Chandrachud posed a hypothetical question, asking whether a PAN card could be used for authentication instead of Aadhaar. He stated that a citizen has several interfaces with the state which may include property tax, electricity bills, paying income tax online, receiving pension etc. He stated that all these services would create numerous interfaces with the state which could allow the tracking of their location.
He then went on to refer to the PAN card. He enquired if the situation would be any different if instead of Aadhaar, a PAN card was used for the same services. He also questioned if the issue was with centralisation of data, asking if that was what made it unconstitutional.
Further, he stated that in the absence of a problem with centralization, the only other relevant aspect was location tracking. He referred back to the point of citizens already being subject to location tracking and giving over their IP addresses and questioned why there would be a problem in the given instance.
Justice Chandrachud continued, stating that Uber tracks people who use their services, questioning why Aadhaar would be problematic then.
Mr. Divan then went on to detail the issues with this line of reasoning.
He stated that firstly, in the Aadhaar system, data was being centralised. Referring to the examples of electricity bills and income tax raised by Justice Chandrachud, he clarified that these were merely silos of information, as opposed to centralised information.
Justice Chandrachud stated that citizens were still being tracked, regardless of the storage.
Mr. Divan stated that as far as the individual facility was concerned, service providers may have a sense of a citizen’s location. Referring to the case of Digital Rights Ireland, he stated that the court ruled that maintaining log records of conversation was still prohibited.
He also stated that a particular service provider knowing a location was inherently different from the process of centralising data.
Mr. Divan then stated that the Bench had been trained to uphold the rights of the citizen, for which it was apt to consider the present situation 25 years in the future. He referred to the instance of school children being subject to Aadhaar authentication for scholarships. He also referred to an experimental use of Aadhaar, where movement of a citizen between cities could be tracked. Referring back to the example of service providers having geographic information as well, he stated that the state also had an obligation to ensure that service providers cannot profile individuals or have access to the kind of data that enables profiling.
Referring to the example of the PAN card being used for authentication, he stated that a system where identity could be established with a PAN card and where services could be received in return, would ensure complete satisfaction and would not have the adverse effects of surveillance.
He clarified that his implication of ‘surveillance’ was not in line with being ‘watched from behind a screen’. He stated that that was however, not the only form of surveillance foreseeable.
Justice Chandrachud then raised a question about insurance policies that had to be paid. He questioned if citizens were opening themselves up to surveillance in this instance.
Mr. Divan responded to the broader issue, questioning if the Indian constitution could allow for a surveillance state. He stated that checks and balances would not be of relevance, considering the degree of invasiveness at play.
Responding to the question on giving over geographic information to banks, he stated that a citizen still had the option to choose from different banks, since there would be different systems of information storage. He also stated that they could choose between a credit and debit card, clarifying that the former enables some form of information collection by the bank but with the latter, sensitive information would be protected completely. Compared to the over-arching power of the state, the power of private service providers and their relationship with citizens was wholly different.