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. Subramanium commenced the proceedings by submitting that the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act / Act) is ultra vires. He stated that when Puttuswamy v. Union of India is read with Subramanian Swamy v. UoI and National Legal Ser.Auth v. Union Of India & Ors., it is clear that dignity is included within the scope of Ar.21 and no word of law can violate dignity.
He submitted the following propositions that are to be argued by him :
- As per the privacy judgment, rights of the individual have prominence over the concerns of the state.
- To satisfy the fist three criteria in Puttuswamy, the aim has to be legitimate, the means has to be least invasive and the act has to satisfy the test of both substantive and procedural reasonableness.
- There can never be a waiver of fundamental rights.
- Legitimacy means that both the aim and the means to achieve that aim are equally discernible.
- Aadhaar Act is violative of Ar.14 as it suffers from excessive delegation.
- Act cannot retrospectively cure the abrogation of fundamental rights.
- Means employed in the statute are flawed because biometrics itself is flawed and algorithmic behavior is irrational and beyond the control of UIDAI.
Mr. Subramanium then addressed Chief Justice Dipak Misra’s question from previous hearing regarding whether virtual person reduces real personhood. He argued that existential identity can’t be judgmentalised by the state and that the negation of such an identity by an algorithmic process devoid of human accountability is unjust. He mentioned that inability to access justice is an overarching theme of the Act.
Next he referred to Binoy Viswam v. UoI & Ors. and pointed out the following three positions that were taken by the state:
- Aadhaar is for a social good.
- It for ensuring effective implementation of supply of services, which can also be through private players.
- There are serious flaws in the collection and retention of information
Next, he argued that Aadhaar Act can’t survive in the absence of data protection law which is based on fairness and that the Aadhaar Act does not satisfy this criteria.
He stated that the Act infringes rights en masse.
Next, Mr. Subramanium addressed Justice Chandrachud’s statement on mobilization during the previous hearing wherein he mentioned that the right to freely mobilize is part of democracy. He stated that the Act impairs people from freely mobilizing and therefore constitutes an invasion.
He further submitted that the Act’s contemplation of ubiquity is contrary to the constitutional goal of self-actualization, which was upheld in the Subramanian Swamy case.
He further stated that the entire authentication is based on algorithms, the behavior of which can’t be predicted by the state. He also submitted that rights and entitlements can’t be subject to the vicissitudes of probability as the Constitution guarantees against vicissitudes and does not enable them. He also complemented Senior Counsel Shyam Divan for establishing the potentiality of surveillance of the Act and pointed out how it would impose restrictions on the citizens and stated that such restriction per se is a violation.
He submitted that if all of the points are looked at cumulatively, it is clear that the project is architecturally unconstitutional.
Next, he referred to the Puttuswamy judgment and pointed out that the golden thread in Ar.14, 19, and 21 is dignity with two hand maidens of liberty and privacy. He submitted that any law should be compatible with this golden thread. He stated that while juxtaposing technology with constitutional prism (comprising of dignity, liberty, and privacy), in an interconnected world brought about by technological advancements we should still observe constitutional prism. He argued that we can’t have discrete silos of information of human relations connected to a technological apparatus.
He then referred to Justice Chandrachud’s judgment in the Puttuswamy case wherein he stated that privacy is concomitant to the right to control personality. In furtherance of it, he stated that existential identity means the identity for survival and pointed out that it can become transactional and even then it’s protected as an inalienable right under Ar.19.
He stated that exclusion is tantamount to discrimination and that any act that results in discrimination is not justifiable.
He, next, referred to the relevant portion of the Puttuswamy judgment that reaffirms Justice Lahoti’s judgment in Distt. Registrar & Collector, Hyderabad & Anr. V. Canara Bank Etc. and emphasized on informational privacy that was upheld in the case.
He then submitted that identification of an individual through a number is destruction of dignity.
He further referred to Puttuswamy judgment and submitted that right to privacy is an element of human dignity. He then discussed Behram Khurshed Pesikaka v. The State Of Bombay and submitted that constitutional rights cannot be waived. He also pointed out that consent is of no relevance here as no one can be fully informed of the workings of algorithm.
Referring to various judgments from different jurisdictions, he submitted that the act of dispassionate, mandatory, and homogenous identification amounts to destruction of dignity.
The hearing will continue on Wednesday (21/02).