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 in 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 with a discussion of national security and stated that considerations of national security have to be compatible with the Constitution and that use of it as an umbrella clause for data collection is clear infringement of rights. Then he referred to the relevant part of Puttuswamy v. Union of India that talks about identification of eligible recipients and pointed out that the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act / Act) does not identify eligible recipients but only provides proof of identity.
He then briefly discussed the issue of biometrics and stated that biometrics was only considered by this court in the context of a commission of a crime. He further stated that the position adopted in Selvi & Ors vs State Of Karnataka & Anr is correct i.e. use of fingerprints of an accused amounts to an invasion and is violative of the protection guaranteed under Ar. 20(3).
He then pointed out that there was a programme in the pipeline to enable purification of national electoral rolls by linking it with Aadhaar and said that the same was suspended by a 3 judge bench of the same court.
Next, he submitted that even though bank accounts are required to be linked to Aadhaar to prevent money laundering, National Payments Corporation of India is making the database available to private parties thereby allowing them to get the profile of an individual from the State Resident Data Hubs (SRDH) as there is no limitation on the information stored in it.
Senior Counsel Rakesh Dwivedi interjected that SDRH was established under a MoU by the UPA regime and that once the Act was enacted the data stored in it was destroyed.
Justice Chandrachud pointed out that sec.57 of the Act does not speak of authorization for access but only authentication and asked for credible documents indicating that private parties have access to the data. Mr. Subramanium responded that authentication agents are not government agents but private players and when Aadhaar number is seeded into multiple databases, the entity can construct the whole profile of the individuals.
Next, he referred to the Definitions section of the act and read out the definitions of “aadhaar number holder’, ‘biometric information’, and ‘core biometric information’. Justice Chandrachud interjected and asked if biological attribute, used in the definition of core biometric information, would include DNA to which Mr. Subramanium responded in the affirmative. Justice Chandrachud then pointed out that the definition is open-ended.
Mr. Subramanium then referred to sec. 31(2) and the corresponding regulation and pointed out that the burden of updating the information on the Central Identities Data Repository (CIDR) is on the individuals. Justice Chandrachud interjected that the government can’t be expected to keep track of all the changes in response to which Mr. Subramanium asked how would an individual get to know if his biometrics has changed and therefore needs to be updated. Justice Khanwilkar then stated that in the event of an authentication failure, the person should update his biometrics. However Mr. Subramanium in response highlighted that nowadays failure of authentication would make the person fake/ghost. He stated that this is the crux of the problem.
Next, he took the court through various sub-regulations of the Enrollment Regulations. Referring to sub-reg.19 (Mode of updating residents’ information), he highlighted that it presupposes a valid biometric authentication. He submitted that if there is an occasion for reconsideration, it can’t be done under this sub-regulation as it contemplates biometric authentication in any case. He then referred to sub-regulations 27, 28, and 29 and submitted that they enable the personhood to be negated at the whims of technology. He pointed out that if there is a rejection of authentication, it is assumed that the biometrics was validly captured at the time of the enrollment and now the person is trying to duplicate. Furthermore, referring to sub-reg.28 he pointed out that there is no substantive or procedural fairness that’s is being followed by the authority in the instance of deactivation of Aadhaar.
He submitted that the whole architecture of the Act is deleterious to human dignity.
He then referred to sec.28 of the Act addressing the security of information and stated that the words used in it are merely in the nature of an assurance and not emphatic. He submitted that the assurance is inconsistent with the Constitution and is therefore fundamentally violative of Ar.14, 19, and 21. Next, he referred to sec.33 of the Act dealing with ‘disclosure of information in certain cases’ and argued that it is plainly unconstitutional as it only provides the authority with an opportunity of hearing and not the individual whose information is retrieved.
Mr. Subramanium, then, referred to sec.7 of the Act and pointed out that it enables Central and State governments to impose Aadhaar as a condition for availing subsidies, benefits, or services. He also highlighted that it does not prescribe that the individual must be the real recipient of the benefits. Referring to sec. 4(3), he stated that it proves the universal coverage of the Act and submitted that it is unconstitutional.
He then summarized his points:
- The Act is void because the stated purpose is not the actual purpose discerned in the Act.
- Biometrics is a probabilistic proof of ID and therefore the blanket power given to biometric authentication is unconstitutional.
- In case of an authentication failure, the entitlements are arbitrarily withheld resulting in a permanent disablement.
- Advancements in technology increase the risk of profiling.
Mr. Subramanium then discussed the risks associated with the collection of big data and metadata and submitted that the algorithms used are highly unpredictable in nature. He further pointed out that with such data the entire profile of an individual can be figured out including the geographical location. He stated that in the absence of data protection law, the risk is heightened and therefore data collection and retention should follow substantive and procedural reasonableness. He reiterated that it can’t be performed for everyone as it’s extremely broad.
Relying on Wilson’s affidavit, he raised concerns with babies being required to enroll into Aadhaar and update it at the age of 5 and 15. He argued that it is absolutely unnecessary.
Next, Mr. Subramanium submitted to the Court a module discussing the ‘exclusion’ nature of the Aadhaar project. Relying on it, he remarked that the rate of exclusion in Jharkhand is 49 percent.
He then referred to L1 contracts within the Aadhaar architecture and submitted that control over the algorithm is exercised by the foreign entity. He further stated that the data is with the foreign entity even though UIDAI has ownership over it and that they can put the sensitive information to any use and analysis.
Mr. Subramanium then brought to the attention of the court that despite its interim order stating that Aadhaar is not mandatory for availing social security schemes and services except for the ones specified by it, subsequent to the enactment of the Act, the government has not been following the order. Referring to the incidents of starvation deaths, Mr. Subramanium requested the court to set up a mechanism to identify people who have suffered deprivation despite the orders of the court and provide them with exemplary compensation.
Concluding his submissions, Mr. Subramanium requested the court to extend the March 31, 2018 deadline in its December 15, 2017 order in light of the pending challenge to the constitutional validity of the Act.
Senior counsel Arvind Datar will commence his arguments on March 6, 2018.