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 Attorney General K.K.Venugopal (The AG) commenced the arguments on behalf of the state.
Mr. Venugopal commenced by pointing out that there are many technical issues involved in this case regarding security, storage of information. He stated that various expert committees have looked into Aadhaar since 2006 and and had also considered other alternatives such as smart card before finally deciding upon Aadhaar. He pointed out that many countries have already adopted unique identification systems and that the World Bank has also examined it and cited it in its “Identification for Development” report. He said that the world Bank has referred to Aadhaar in the report.
He requested the court’s permission to present a PowerPoint presentation by the CEO of Unique Identification Authority of India (UIDAI) to explain the technical and security aspects of Aadhaar.
CJI responded that the petitioners have argued on privacy, anonymity, dignity, surveillance, aggregation, presumptive criminality, unconstitutional conditions, absence of law, and security and asked the AG to respond to these legal contentions first. Mr. Venugopal responded that the presentation would clarify all the doubts and fears regarding the Aadhaar structure and it would help the state in explaining their legal contentions in a better manner.
The Bench responded that a decision on the presentation would be made later and asked the AG to continue with his submissions.
The AG submitted that large sums of money have been saved by providing benefits and services through the Aadhaar programme. He stated that when the British left India the poverty level was 66 percent and corruption was massive. He argued that the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act / Act) has been framed to address these issues and to bridge the gap between the rich and the poor. He further argued that the architecture of the Act is such that it would ensure the lowest possible level of invasion of privacy. He also submitted that before the Act, Aadhaar was voluntary and therefore one cannot argue that his voluntary act has resulted in a violation of his fundamental rights.
Referring to Munn v. Illinois, the ratio of which has been accepted by the Indian Supreme Court, he stated that right to life is not a right to a mere animal existence but is the right to live as a human being with full dignity.
Justice Sikri pointed out that its interesting when two rights- right to privacy and right to life- clash and pointed out that in this case right to dignity is invoked by both sides.
CJI stated that liberty cannot be compromised unless it is for certain exceptions like criminality. He then clarified if the AG’s argument was that the individual right to privacy must give way to distributive justice. The AG responded that if one is poor in this country he becomes invisible. Justice Sikri intervened that this argument should be dealt in the context of exclusion to which the AG responded that even though the issue of exclusion has been raised by various NGOs the court has not yet heard from any affected person. Justice Chandrachud intervened that individual rights cannot be made subordinate to distributive justice. The AG responded that the right of people to not die of hunger and have a shelter prevails over the right to privacy. Justice Bhushan however stated that all these rights have to exist and cannot trump the right to privacy.
The AG submitted that here the question is of balancing the rights and not of violation. He reiterated that there can be no question of violation of fundamental rights prior to the Act as no one was coerced to get the Aadhaar but was purely voluntary. Justice Chandrachud pointed out that even if people volunteered to get an Aadhaar they never accepted the commercialization of their personal data.
The AG argued that people from the marginalized communities who became beneficiaries during 2009 and 2016 have not raised any complaints. Justice Sikri in response pointed out that the class of s.7 beneficiaries of the Act is not limited to just the marginalized communities.
The AG submitted that Aadhaar is enabling the right to food, livelihood of millions of residents by proving them with subsidies, benefits, and scholarship. He stated that it is an efficient and transparent means for delivery of services and pointed out that it is only a handful of petitioners who are now challenging it on grounds of privacy.
Referring to the statement of objects of the Act, he submitted that the objective of the Act is to ensure targeted delivery for genuine beneficiaries and therefore it furthers the right to life of poor people in India and also advances the Directive Principles.
The AG then referred to the Wadhwa Committee Report referred to in PUCL v. UoI, which recommended computerization of public distribution services. He referred to the relevant part of the judgment where the court asked Mr. Nandan Nilekani to suggest ways for computerization and stated that it is Mr. Nilekani who has conceptualized UIDAI.
Next, he submitted that s.12 of the National Food Security Act envisages Aadhaar for targeted distribution and transparent delivery of food grains. He then referred to relevant part of Binoy Viswam v. UoI which endorsed that Aadhaar prevents multiple identities and provides for one unique identity. He referred to relevant excerpts of the judgment which rejected the Article 14 challenge to Aadhaar and endorsed it as the most robust way to prevent duplication.
Justice Sikri pointed out that pension is a right and asked how it would fall within the scope of s.7 of the Act. The AG responded that there are fake pension cards as well. However Justice Sikri stated that it has to be discussed in the context of exclusion, in response to which the AG reiterated that the court has not yet heard from anyone who has been excluded.
Justice Chandrachud asked how would a pensioner residing abroad with his children receive his pension, as he would not be able to produce his aadhaar card in person. The AG pointed out that the Aadhaar is only required for residents and stated that there must be a separate provision in the Pension Act dealing with NRIs. He said that such a person would not be covered by the Aadhaar Act.
Justice Chandrachud pointed out that pension accounts are individual accounts and therefore there is no question of impersonation. Responding to this the AG referred to the World Bank Report which stated that unique identification should be made universal.
Next, Justice Chandrachud pointed out that pension is an entitlement and therefore would not come under “subsidies, benefits, and services” and s.7 of the Act. The AG responded that pension comes from the consolidated fund and therefore it is covered.
Justice Chandrachud stated that the problem of financial exclusion in our country is undeniable and pointed out that the Cabinet Secretary has also acknowledged it. He said the he wants the government to come upfront about it and inform the court what measures have been taken to address the issue. The AG stated that exclusion cannot be a ground for striking down the whole project and also agreed to submit before the court the measures that have been adopted.
Referring to the World Bank’s Identification for Development Report, he reiterated that Aadhaar is the only mechanism that can ensure development. He argued that official identification is a fundamental human right and it helps in ensuring economic development, participation in electoral process, and helps the government in providing benefits to the people. He submitted that it is a key enabler of sustainable development goals.
Justice Sikri asked if the purpose of aadhaar is to establish identity and ensure that there are no fake cards, where is the need for centralization of data to ensure it. He further pointed out that in Singapore every citizen is required to have a unique identity but it is chip based and is not stored with the government. The AG replied that smart card was considered but it is not feasible in the Indian context.
The hearing will continue on the 22nd of March, 2018 (Thursday).