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 final hearing commenced on January 17, 2017. Summaries of the arguments advanced on the previous hearings can be found here.
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. Sibal commenced the proceedings by reading out the definition and purpose of biometric database from the biometric ID law of Israel. He focused on the aspect of consent in the law and pointed out the voluntary nature of the ID cards. He further pointed out that the law permits the usage of biometrics only for the purpose for which it is collected and that access to the database is also restricted for a specific purpose. He also indicated that there is no provision for collection of metadata in the Israeli law.
Next, he referred to the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act / Act) and submitted that it is mandatory, lifelong, expansive, and that consent is illusory under it. He said that database should be used only for purposes authorized by law but also pointed out how the purpose of national security is often misused in India citing the targeting of NGOs in the name of national security as an example.
Mr. Sibal then submitted his proposition that information is power in today’s world where it is used for both commercial and non-commercial transactions. He referred to Paragraph 311 of Puttuswamy v. Union of India discussing the power of information and knowledge. Next, he read excerpts from the Harvard Business Review, which discussed the acquisition of WhatsApp by Facebook for an extremely high value and stated that these services are highly valued because of the information they provide. He then referred to the privacy judgment again, which stated that services such as Airbnb, Uber have only scattered information. He argued that information in silos is inconsequential whereas aggregated information poses a huge threat.
He stated that we cannot argue against the state insisting on national ID but we can ensure that our ID is neither in a public space nor in a centralized database. He further submitted that it is not problematic if the state asks for an ID card with biometrics as there is no metadata in it and reiterated that what is being challenged is the architecture and not the thought behind the Aadhaar. He stated that information regarding the opening of a bank account or a train journey is not relevant to public interest and there is no need for such information to be with the state. He highlighted this as the metadata problem. Referring to the incident where a woman had to deliver a baby outside the hospital for want of Aadhaar, he argued that medical information has no relevance to public interest.
He stated that his fundamental identity is that of a citizen of India and argued that how he proves his identity is his choice and the state can’t dictate how he should prove his citizenship.
Mr. Sibal, next, discussed the issue of mandatory nature of Aadhaar. He pointed out that despite the voluntary nature provided in Sec. 3 of the Aadhaar Act, it is actually mandatory. He then moved to Sec. 57 and pointed out that the section brings out the true intent of the Act to establish it as an exclusive proof of identification for purposes other than the ones stated in the object. He submitted that consent given is only for authentication. However when Aadhaar is made mandatory to get entitlements, there is no real purpose of consent.
Mr. Sibal, next, discussed the issue of concentration of information in a single entity. He stated that such concentration gives enormous powers to the entity and referred to relevant portions of the privacy judgment to highlight the issue.
Next, he discussed the issue of proportionality. He pointed out that for an statute to be proportional its objective would have to be taken into consideration and if the proposed policy was the least restrictive way to achieve that objective. Mr. Sibal submitted that, in the current case there was no nexus between Aadhaar and entitlement and therefore it was violative of the proportionality doctrine. He further stated that it was a citizens status from which entitlements were to flow and the state could not deny benefits only for the want of a certain proof of identity. He further pointed out that most the entitlements flow from part III of the Constitution and therefore the denial of it for want of a particular proof of identification would be denial of those fundamental rights.
Referring to Article 21, he stated that the right to livelihood can be denied only by just and fair procedure of law and therefore denial of it merely for want of Aadhaar is neither just nor fair.
He concluded his argument on proportionality by stating that the procedure does not meet the test of Article 14 and therefore using only Aadhaar as proof of identity is unconstitutional and that it amounts to extinguishment of fundamental rights.