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.
Counsel Gopal Sankaranarayanan, appearing for the intervener Centre for Civil Society, resumed his arguments. He began with a discussion on the right to identity and submitted that it is an absolute intrinsic part of Ar.21. Justice Chandrachud interjected that one has an umbrella identity of a citizen and in addition has multiple identities associated with race, religion, caste, which are not taken away by Aadhaar. He further mentioned Aadhaar only identifies the individual who is seeking the benefits under s.7 of the Act and therefore the constitutional identity is not effaced.
Mr. Sankaranarayanan responded that Aadhaar is a number that helps in establishing the identity of a person who avails the benefits and subsidies under s.7 of the Act.
He further submitted that he supports Aadhaar because of the safeguards and pillars which the Act have in place and pointed out that s.139 AA of the Income Tax Act does not have those.
Next, referring to the statement of objects and reasons of the Act, he submitted that identification of targeted beneficiaries is the key purpose and therefore Aadhaar is voluntary and could be used a proof of identity by persons who are beneficiaries of subsides. He further stated that even if someone does not have an Aadhaar the state has an obligation to identify the person as he has a fundamental right to identity under Ar.21 and cited it as the reason for the way in which s.7 is drafted.
Justice Chandrachud pointed out that the concern raised is that the state has restricted the means of identification solely to Aadhaar. Mr. Sankaranarayanan responded that according to Ar.266(3), utilization of any amount from the consolidated fund has to be in accordance with the law, the Aadhaar Act in this case, and that it would not only be a violation of the scheme of law but the Constitution itself if any amount goes from the consolidated fund to a person who is not entitled to receive it. He further submitted that the government has an onus to secure the fund and that the Act helps in ensuring that the obligation is discharged and therefore the action of the government is subserving a fundamental right. But he argued the government’s submission that s.7 is in furtherance of fundamental rights is flawed, since identification of beneficiaries would not have been required as everyone would have been entitled to it if it was a fundamental right. He therefore submitted that it is in furtherance of Directive Principles.
Justice Chandrachud mentioned that when the state is enforcing a Part IV value, it indicates reasonableness and thereby a restraint on judicial review. However he stated that as per s.7, Aadhaar is not completely voluntary since it is required for a person who wants to avail a benefit. Mr. Sankaranarayanan responded that it is voluntary since it is not mandatory for 1.3 billion of the country but only for a specific section of the population.
Next, Mr. Sankaranarayanan raised concerns with Aadhaar becoming the universal proof of identification (PoI) replacing all other 18 PoIs. He submitted Aadhaar is only as foolproof as any of the other PoIs.
He then submitted that making Aadhaar mandatory for purposes other than what is provided in s.7 is arbitrary and that the section has the balance of limited purpose whereas s.139AA of the Income Tax Act does not. He further mentioned that the reasonableness and proportionality criteria would be satisfied only if Aadhaar remains voluntary for purposes other than s.7.
Addressing the issue of proportionality, he submitted the least restrictive test should not be applied as proportionality deals only with balancing of rights. He also stated that entrusting data with CIDR is safer than using embedded cards as one can misplace his card. He further stated that the legal safeguards and limitations provided under the Act are balancing factors for proportionality.
Mr. Sankaranarayanan then argued that UIDAI should plug the holes in the Aadhaar architecture before rushing with it especially since at present Aadhaar is unable to keep up with the technology. He also raised concerns with the level of security assured by the state and submitted that even 2048 bit asymmetric key is not the best. Next, he submitted the authentication history of the CEO of UIDAI and pointed out that his biometrics is locked indicating his distrust in the safety of his biometrics offered by CIDR.
Mr. Sankaranarayanan, then submitted that there are various problems with the Act. Firstly, he argued the requirement under s.8(4) to share identity information is a violation of privacy with no counterbalancing state interest. He stated that address is also as important as biometrics and therefore authentication should be restricted to Yes or No. Secondly, he submitted that s.29(2) conflicts s.12 of the Right to Information Act. Thirdly, he argued that s.139AA of the IT Act targets individual income tax pan holders and not corporates even though it is always dummy companies and not individuals that are involved in the scams. He also submitted that Aadhaar has been made mandatory for income tax purposes without informed consent and in spite of it not being related to the consolidated fund of India. He therefore submitted that it fails the proportionality test. He argued that if the purpose was to curb black money and money laundering, it is not achieved by linking PAN with Aadhaar number.He concluded by submitting that petitioners have a valid ground for expressing lack of trust in the Aadhaar architecture.
Next, senior counsel Neeraj Kishan Kaul commenced his arguments on behalf of Authentication User Agencies and e-KYC User Agencies (AUAs and KUAs). He submitted that if Aadhaar is a reliable and speedy tool for identification and authentication, it should not be held invalid. He argued that Aadhaar authentication in the banks have empowered the poor, women, and migrants and that the use of Aadhaar has helped in reducing predatory financing.
Mr. Kaul submitted that private players are also governed by the Act and have the choice to use Aadhaar if required under s.57 as it is an enabling provision. Justice Chandrachud responded that the need for verification should not be decided by the private players. Mr. Kaul responded that as long as there is consensus between the private entity and the consumer on using Aadhaar, it should not be disallowed. He argued that the AUAs and KUAs are not performing any verification outside the Act. He asked if the statute enables a private entity to use Aadhaar, a powerful tool for verification of identity, why should not it be allowed to employ it.
He further submitted that Aadhaar is extremely different from Cambridge Analytica as it is based on matching algorithms unlike learning algorithms used by Google and Facebook and also has a statutory control. He argued a statute cannot be struck down merely because there is a scope for misuse.
Mr. Kaul further argued that the nature of request that goes from AUA is to please match the information provided and if it is e-KYC the requesting entity will receive the basic demographic information and photograph. Based on this, he submitted that the CIDR does not obtain any data on location but only receives that an AUA has made a request, thereby eliminating the scope of surveillance. He further submitted that the information collected via e-KYC is collectible dehors Aadhaar and therefore the actual issue is of unauthorized sharing which is possible even outside Aadhaar and therefore it is no reason to strike down s.57. He concluded by mentioning that with the use of virtual ID, no AUAs/KUAs will be able to store the Aadhaar numbers.
Next, counsel Zoheb Hossain commenced his brief submission on behalf of UIDAI and State of Maharashtra. He began by raising an objection to Mr. Sankaranarayanan’s argument that s.7 is only in furtherance of Directive Principles. Referring to Amartya Sen and Martha Nassbaum, he argued that now there is a greater consensus that social and economic rights are enforceable and pointed out that the Supreme Court has also held that they are justiciable rights. He further submitted that the right to food, shelter, clothing are embedded in Ar.21 and that the state has a positive obligation to provide it to its citizens. He therefore submitted that here the issue is of balancing the right to privacy with other socio economic rights of the people provided by Ar.21 and not merely of furtherance of Part IV requirements. He argued that Aadhaar is an architecture that helps in progressively achieving positive duties of the state under Ar.21
The hearing will continue on May 2, 2018.