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 went on to discuss extracts on constitutionalism and the rule of law. Referring to the landmark judgment of Keshavnanda Bharati vs. State of Kerala, he stated that the rule of law cannot be abrogated.
He discussed the concept of fundamental rights being inalienable natural rights, which wouldn’t just amount to ornamental rights.
He then went on to discuss the concept of limited government qua the citizenry as a whole.
Referring to the Preamble of the Constitution, he stated that it was enough to prove that one cannot store, track and keep away information and any such initiative would be out of line with the preamble.
Justice Chandrachud interjected stating that moving beyond privacy, financial exclusion as an issue should also be focussed on. Mr. Divan stated that the other counsel would address that issue.
He then handed over an affidavit, referring to the lack of internet access in most parts of the country and how that would be inconvenient for the Aadhaar programme.
Mr. Divan then went on to discuss the quality of the centralised, drawing attention to the fact that 49,000 enrollers have been blacklisted.
He then went on to read excerpts on constitutionalism from Justice Puttaswamy vs. Union of India and from Nandini Sundar vs. State of Chhattisgarh.
Further, he discussed the issue of constitutional governance, reading out a statement published by the President of India. The excerpt focussed on trust as a necessary component of constitutional governance.
Following from which, he stated that the state seemingly had no trust in the citizenry, and believed that unless biometric information was given over we would be a ‘nation of scoundrels’.
He stated that several aspects of the Aadhaar programme were less than ideal from a ‘rule of law’ perspective. First, there was no mention of biometrics in the administrative notification. Second, they did not assume any responsibility with regard to the biometric data collection process. Third, they foisted responsibility on to registrars who did not have any administrative power.
Mr. Divan then stated that the UIDAI had ignored the Parliamentary Standing Committee Report’s recommendations.
He also stated that by creating an aura of impending necessity, enrollers were incentivised to increase the number of enrolments. In addition, he referred to how the system enabled the profiling of citizens.
He reiterated the point that a series of orders have been passed by the Supreme Court, which would invalidate the mandating of Aadhaar and questioned whether these could be overridden.
He then went on to discuss the preamble of the Constitution and how a centralized database with sensitive information would not be supported, and how an electronic registry of this nature would be ultra vires Part III of the Constitution.
Further, he suggested that the Indian judiciary make efforts to be in line with the ECHRs judgments.
He stated that in a liberal democracy, an individual was entitled to fully develop his or her personality. Scholarships, pensions and statutory rations were all services that would enhance the development of a citizen’s identity. He further stated these services could not be made conditional or bartered away.
Further, on the point of democracy and constitutionalism, Mr. Divan stated that democracy depends on faith in the people and faith in people’s decision. The fact that a citizen could do something in their space without the state knowing is a part of constitutional values.
On the issue of good governance, he stated that people must be given the choice to identify themselves with regard to the private and the state.
Referring to an affidavit, he detailed the justifications for Aadhaar.
First, Aadhaar was believed to give millions of Indians an identity and second, it would also lead to savings, by plugging leakages and avoiding de-duplications.
He stated that these claims were not valid.
Mr. Divan stated that the Aadhaar system requires furnishing existing proof of address and proof of identity – in the form of either a voted ID card, NREGS or PDS, amongst others. In the absence of such proof, a 3rd party would have to introduce a citizen to the system.
Referring to statistics, he stated that roughly 2 lakhs (0.03%) enrolments were made through the introducer system. Following from which he stated that 0.03% of enrolments could not be a justification for rolling out a large identification system.
On the point of savings and welfare programmes, Mr. Divan referred to an affidavit, stating that the World Bank has claimed that Aadhaar has led to a savings of 11 billion dollars per annum. Following from which he mentioned that Paul Romer, the Chief Economist of the World Bank stepped down from his position stating that the data of the World Bank had no integrity.
He further stated that these specific World Bank references were proven incorrect, since the figure cited referred to the total transfer or total disbursal which amounted to Rs. 70,000 crores and did not refer to the total savings, as claimed.
Further, he cited statistics on savings under the MNREGA scheme, establishing that they were either inflated or incorrect.
Referring to an RTI response, Mr. Divan stated that there was no specific methodology utilised by the state to detect fraud.
The Chief Justice clarified whether Mr. Divan was stating that smaller public interest should give way to a larger public interest. Mr. Divan agreed, stating that the individual would become diminished otherwise, which should not be allowed for the sake of the larger public interest.
Lastly, he discussed to the LPG linking scheme and the savings accrued. He stated that the savings implied from Aadhaar linking were not accurate as there was a previous initiative to eliminate duplicates from the LPG scheme.