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 began by reiterating that his primary status is that of a citizen of India and not that of an Aadhaar cardholder and that there is no difficulty in connecting identity to status. He stated that the Aadhaar architecture is defective and even if it is made perfect, it still could not be made mandatory.
He then discussed the doctrine of unconstitutional conditions upheld in The Ahmedabad St. Xaviers College Society & Anr. Etc. v. State of Gujarat & Anr. and In Re: Kerala Education Bill v. Unknown and explained that according to the doctrine a state cannot make a benefit or privilege conditional upon an individual giving up his rights. He argued that a condition that precludes one from enjoying a benefit on the basis of an unreasonable classification is void.
Justice Chandrachud asked if it’s not reasonable for government to require proof of identity if entitlement derives from it. Mr. Sibal responded that the proof has to be linked to ones status, which entitles him to a benefit. Justice Chandrachud interjected that there has to be a minimal way to prove who you are to which Mr. Sibal responded that there can be different ways to establish ones identity and reiterated that Aadhaar does not establish ones status.
Chief Justice Dipak Misra clarified if Mr. Sibal’s submission was that one could not be asked to barter or surrender any of his fundamental rights in order to have access to another and Mr. Sibal responded in the affirmative.
Justice Chandrachud asked if the argument was that constitutional violation occurs when a person’s choice of identity is restricted to one option and Mr. Sibal agreed to it. Justice Chandrachud pointed out that the argument is premised on the notion that everyone has at least one form of identity. He asked if in the event one does not have any identity proof if the government program is enabling him to have one, would that make the program constitutional. Mr. Sibal responded that even in such a scenario, the government cannot make just one identity compulsory but can only prescribe a method by which he can get an identity.
Chief Justice Dipak Misra pointed out that the whole argument boils down to choice and Mr. Sibal agreed to it. He submitted that the point of Aadhaar is not to grant identity but to authenticate it.
He agreed with Justice Chandrachud when he said that the argument put forth is that citizens must have a choice in deciding how to establish their identity through a reasonable manner prescribed by law.
Mr. Sibal, next, read out notifications that make Aadhaar mandatory for child labor welfare schemes, bonded labor rehabilitation schemes, which are meant for the most marginalized and pointed out that it is them who will be excluded and asked “if this is not a denial of fundamental rights, then what is?”. Next, he referred to Minerva Mills Ltd. & Ors. v. Union of India to emphasize that state should not achieve its goals by abrogating fundamental rights.
Mr. Sibal then mentioned that Aadhaar does not stop pilferage or leakage. Justice Sikri interjected stating that even if Aadhaar fails to take care of all kinds of fraud that in itself would not make it unconstitutional. Mr. Sibal responded that it would not but would raise questions about its proportionality and reiterated that his argument is that the scheme is disproportionate.
He then submitted to the court a compilation repudiating all the factual claims made by the state.
Justice Sikri raised concerns regarding people possessing multiple passports and other IDs and proposed that Aadhaar can be used to curb this problem by replacing multiple IDs. Mr. Sibal rebutted that people have multiple Aadhaars as well and stated that it is an issue that has to be dealt by law. He argued that the fact that some people are breaking the law couldn’t be cited as a ground for justifying the state’s action of making Aadhaar mandatory.
Mr. Sibal concluded by stating that this is the most important case that has been dealt by the court since independence and stated that it is more important than ADM Jabalpur v. S. S. Shukla as it dealt with a constitutional provision which had a limited expanse whereas Aadhaar has unlimited expanse as it binds everyone including the ones who are yet to be born. He stated that this judgment would decide whether we would be living in a country with choice or in a country where the state is the arbiter of choice.
Senior Counsel Gopal Subramanium commenced his arguments.
Mr. Subramanium initiated his arguments by referring to Puttuswamy v. Union of India and stated that the core of the judgment was the idea of dignity. He submitted that despite the advancements in technology, the Constitution has to be abided by. He stated that according to the privacy judgment the intrusion into the right to privacy by the state has to be as minimalistic as possible.
He stated that identification itself is a pejorative act. He also submitted that the Act strikes at the accountability of the state as it disintermediates the state.
The hearing will continue on Thursday (15/02).