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.
Attorney General K. K. Venugopal resumed his arguments for the state. He continued to refer to judgments that upheld the collection of biometric information. He discussed the decision of the US Court of Appeals, which dealt with DNA and forensic identification of prisoners. The CJI pointed out that the case only dealt with a narrow group of offenders and therefore might not be applicable to the context of Aadhaar. The AG responded that the reasoning of the court is relevant as it upheld the legislation on the grounds that it cannot be struck down on the basis of mere possibility of misuse in the future and that if the provision is later amended it will be dealt with in the future.
Justice Chandrachud responded the issue here is not that of misuse but of the use of law as s.2(g) of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act, 2016 (Aadhaar Act / Act) can expand the scope of ‘biometric information’. He further mentioned such power vested in an administrative authority might not meet the proportionality requirement. The AG responded it is an issue of excessive delegation and that he would address it.
He next referred to a Fordham Law Journal article on automated finger imaging and the right to privacy explaining how the former does not result in a violation of the latter. Referring to the article, he stated finger imaging is 99.9 percent accurate.
He submitted biometrics is a tool for very accurate conclusion as it prevents fraud and other violations such as tax evasion, money laundering. However Justice Sikri replied fraud is not because of multiple identities. The AG responded if there is Aadhaar, there would be no question of multiple identities. Justice Chandrachud pointed out Aadhaar would not prevent a person from setting up multiple layers of commercial entities controlled by the same individual and therefore would not contribute towards preventing bank frauds.
Justice Chandrachud further stated that even if Aadhaar satisfies the legitimacy of interests, the crux of the issue deals with proportionality. He asked how far could the state cast the net. He pointed out that under s.7 of the Act, the state can rely on legitimate state interest i.e. ensuring that the benefits go to the deserving people but the issue is with respect to those areas which are unrelated to the areas stipulated under s.7.
The AG responded that the government has to compare to 1.2 billion names to avoid de duplication and identify the right person. He asked how far does the casting of the net to areas other than the ones mentioned in S.7 of the Act result in a violation of the right to privacy.
Justice Sikri stated the requirement to tabulate each and every activity involving money, irrespective of whether it’s linked to s.7, through authentication might not satisfy the requirement of proportionality. He cited the example of linking mobile number with Aadhaar and said one can say it’s related to money laundering but considering everyone to be a possible violator is violation of proportionality.
The AG responded that terrorists communicate to each other secretly through cell phones and pointed out the example of internet shut down in Kashmir. However Justice Chandrachud responded that the political wisdom of the action is not questioned but he pointed out that terrorists do not apply for mobile number and therefore it is not necessary to ask everyone to disclose their Aadhaar number to obtain a mobile number.
The AG responded the question is to what extent is the right to privacy invaded. He reiterated it is as minimal as possible and further submitted that as far as demographics are concerned, all of it is available in the public domain and therefore there is no invasion of privacy other than the bare minimal amount. He also stated that this helps in serving large public interest.
The AG then asked if a claim of right to privacy can be raised for the purpose of denying rights covered under s.7 of the Act and pointed out that earlier there were large number of fake cards. Justice Chandrachud stated s.7 is not based on an ‘US v. Them’ argument. He pointed out Ar.21 has two elements- a) economic and b) privacy.
The AG responded both the rights are traceable to the same article and therefore the issue is how to reconcile between them. He referred to a case wherein the court upheld the right to information over the right to privacy. However Justice Sikri pointed out that in the case the court only had to deal with balancing of two rights of the same person.
The AG responded that only the bare minimal amount of information required to satisfy the identity of the individual is collected. He further stated that where Aadhaar is required for ensuring that the vast majority of population have the basic right to life such as shelter, food, there is full justification for the encroachment on the right to privacy, provided it is minimal.
Justice Chandrachud suggested the better argument for the state would be to acknowledge that there is an invasion but that it is proportional to the need. He also said in order to decide if the invasion is minimal or not other factors such as informed consent, purpose for which biometrics is obtained, safeguards that are in place to ensure that it is not leaked out for other purposes should be considered. Justice Bhushan interjected that minimal invasion is purely subjective. The AG responded the bench should look at the information collected from an objective perspective keeping in mind the larger interest of the country.
Justice Chandrachud said proportionality laid down in Justice K. S. Puttuswamy And Anr. V. UoI was in broad terms and therefore it is to be determined how to use it in the case of Aadhaar. He asked if it would mean utilization of data only for the purpose for which it was collected. The AG responded not one extra element of information is collected from the individual than is required for the purpose and further submitted that s.29(1)(a), s.29(1)(b) of the Act stipulate purpose limitation.
Next, Justice Chandrachud mentioned there was no safeguard before the Act came into being and that s.59 of the Act does not provide for retrospective application. Senior Counsel Rakesh Dwivedi submitted that a concept study was performed in rural areas before Aadhaar was decided upon and that Information Technology Act in 2009 empowered the use of Aadhaar for e-commerce.
The hearing will continue on April 10, 2018.