Aadhaar [Day-20, Session-1] In Case Of Conflict Between Rights To Privacy And To Physical Existence Without Hunger, The Latter Ought To Prevail: AG Tells SC

After the conclusion of the submissions of the petitioners in the string of writ petitions challenging the constitutionality of the Aadhaar (Targeted Deliveries of Financial and Other Subsidies, Benefits and Services) Act of 2016 on Tuesday, Attorney General K. K. Venugopal commenced arguments for the Centre on Wednesday.

By way of preliminary remarks, he clarified before the five-judge bench of the Supreme Court that after him, Senior Counsel Rakesh Dwivedi shall argue for the UIDAI, thereupon Senior Counsel Jayant Bhushan for the RBI on an intervention application and Advocate Gopal Sankaranayanan for another intervenor.

“There are two highly technical aspects involved- one, regarding the security of data, in terms of access to the biometric and demographic database; and two, regarding the prevention of leakages in social security schemes”, he commenced.

“Between 2006 and 2016, 61 committees including Empowered Groups of Ministers and expert groups have deliberated on alternatives to Aadhaar cards such as smart cards etc...the Aadhaar is a serious attempt on the part of the government for insulating people...several countries have adopted similar systems of identification...the World Bank has, in its ‘Identifications for Development’ Integration Approach Study, investigated the various aspects of the Aadhaar regime as well those of other countries...”, he elaborated.

Thereupon, he sought to permission of the bench to make a technical presentation by way of a PowerPoint presentation created by Dr. Ajay Bhushan Pandey, CEO, UIDAI.

In response to a query by Justice D. Y. Chandrachud, he responded that the presentation is focused on the factual aspects of the Aadhaar project as raised by the petitioners, including technical aspects of surveillance, data security, exclusion and manipulation. He added that there is a four-minute video on the structure of the CIDR.

Chief Justice Dipak Misra asked the AG to proceed with his submissions while they contemplate on the necessity of viewing the presentation.

The Chief Justice summarised the legal arguments advanced by the petitioners over the 19 days of the Aadhaar hearing, requiring the AG to respond to the same- “privacy and dignity...’I love my anonymity’...’my privacy is my pleasure’...concerns of virtual mass surveillance...data aggregation upon Authentication...in the name of security, the entire population may not be treated as criminals or terrorists...the entitlement to ‘Subsidies, Benefits and Services’ could not b subject to the onerous mandate of Aadhaar... the data gathered as well as the Authentication records between 2009 and 2016 need to be destroyed...”

By way of background, the AG began to submit, “In the British times, the rate of poverty was 66% and that of illiteracy was 87%...while the population between 1947-1950 was only 300 million...there were instances galore of diversion of funds by middlemen and public servants...corruption was massive”, adding that India was ranked high in terms of corruption.

“There has been no violation of Fundamental Rights between 2009 and 2016 as prior to the passage of the Act of 2016, by virtue of the orders of the apex court, Aadhaar was voluntary”, the AG contended.

[At a later stage of the hearing, Justice Chandrachud had remarked in respect of the aforesaid contention, “when residents had volunteered to enrol under the Aadhaar scheme between 2009 and 2016, there were not in place any safeguards (of data protection and information sharing) or the requirements of counselling and informed consent which have been subsequently, introduced under the Act of 2016. Secondly, even between 2009 and 2016, nobody had agreed to surrender their right to personality”. Justice Sikri had agreed that there could not be a waiver or the presumption of informed consent. The judge had also remarked that in addition to the beneficiaries of the Subsidies, Benefits and Services referred to under section 7 of the Act of 2016, there were other persons too. The AG responded that the issue of Aadhaar linkage with bank accounts and mobile phones shall be dealt with separately.]

Referring to the judgment in Munn v. Illinois [94 US 113 (1876)], the AG submitted that the right to life under Article 21 has been interpreted as meaning not mere animal existence, but a life with dignity, including rights to food, shelter, employment etc.

“This would raise an interesting question...while the DPSPs require the State to safeguard and uplift the marginalised sections, there is also the right to dignity and privacy of the others”, intervened Justice A. K. Sikri.

“The right to privacy of an individual may be violated only as a reasonable measure, not to give way to distributive justice”, added the Chief Justice.

“The problem with poverty is that those who are poverty ridden become invisible...”, the AG sought to submit.

“Explain this argument along with the claims of exclusion”, remarked Justice Sikri.

“Several NGOs have filed petitions, but Your Lordships have not heard a single depraved person complaining...in respect of the case of the woman who died for the want of Aadhaar, we have a counter...”, the AG responded.

“There is no antithesis between political guarantees and economic guarantees. It is not like that there shall be the right to privacy for one section of the society and economic rights for the other”, remarked Justice Chandrachud.

“That is why there have been no complaints from the latter...”, replied the AG.

Upon mention by Justice Chandrachud that during the Bengal Famine (of 1943), people died on account of the lack of information and while, in the Maharashtra famine (of the 1970s), the per capita income fell below that of Sudan, there were no deaths as there was no informational black out, the AG responded that several deaths in the Bengal Famine could be attributed to the decision of Winston Churchill of prioritising requirements of war over food supplies for the population. When the Chief Justice inquired as to what the reply of the House of Commons was in those circumstances, the AG quoted, “It is their own fault for breeding like rabbits”.

“The same Fundamental Right has two aspects- one, the right to privacy, which is being used to challenge section 7 of the Aadhaar Act, and two, the right to physical existence without hunger and without having to live on the pavement...in case of a conflict between the two, the latter ought to prevail...”, the AG continued.

Thereupon, the AG proceeded to read out from the written submissions regarding the objective of the Aadhaar Act- “The State is using the Aadhaar as an enabler of the right to food, livelihood, pension and other social welfare schemes including scholarships, while the petitioners are attacking the project on the grounds of privacy...144 notifications have been issued under section 7...the object of the impugned Act is to assure the access to Subsidies, Benefits and Services in view of the DPSPs in Articles 38, 39 and 40...in the past, the identity of the beneficiaries has failed the implementation of these welfare programmes, particularly in respect of the old and the disabled...”

He also referred to a World Bank report of November, 1997 on the expenditure incurred by the government in India on account of leakages.

He indicated a statement by former PM Rajiv Gandhi that of every one rupee of the expenditure on welfare schemes, only 15 paise reached the beneficiaries. He added that the statement had been subsequently confirmed by Finance Commission.

He also Referred to the report of the Justice Wadhwa Committee, appointed by the apex court in PUCL v. UOI (2011) to look into the maladies affecting the proper functioning of the Public Distribution System (PDS).

The hearing shall resume post the lunch hour.