Aadhaar [Day-7] Shyam Divan Concludes His Six And Half Days Long Arguments Referring Gandhiji's Protest Against Transvaal Act

As the hearing in the string of writ petitions challenging the constitutionality of the Aadhaar Act of 2016 resumed on Tuesday before the five-judge Constitution bench of the Supreme Court, Senior Counsel Shyam Diwan, appearing on behalf of one of the petitioners, drew the attention of the bench to the instances of starvation deaths in Jharkhand on account of failure of Aadhaar authentication.

 “The pension of the beneficiary was transferred to another person by reason of incorrect linking of Aadhaar numbers. This is the concern regarding the National Payment Corporation of India’s (NPCI) mapper. Another person was denied access to rations”, he elaborated.

“We have understood your point. Please advance your submissions on legal and constitutional grounds now”, remarked Justice A. K. Sikri.

“Another affidavit describes how Aadhaar is acting as an instrument of exclusion in respect of leprosy patients who have either no or distorted fingerprints”, observed Justice D. Y. Chandrachud.

Thanking the judge for throwing light on the aforesaid affidavit, Mr. Diwan submitted, “The concerns here are regarding exclusion, a life of dignity and death. In a democracy, Only one means of identification cannot be compulsory imposed on all citizens”.

“We are interested in the extent of perviousness of the internet in India”, said Justice Chandrachud.

Citing the example of the Point of Sale (PoS) machine which functions on memory even upon disconnection of the internet, Mr. Diwan advanced, “Aadhaar has a very minimal contribution in weeding out identity fraud. There are other more secure means of plugging leakages in social security schemes”.

Justice Chandrachud concurred- “These affidavits reveal that despite mandatory Aadhaar linkage, the beneficiaries are at the mercy of the PDS dealer. So Aadhaar is displaying the common characteristic of perpetrating exclusion instead of regulating the providers of subsidies and other social services and benefits. This constitutes an infringement of Article 14”.

Senior Counsel Kapil Sibal referred to a news report in the Indian Express revealing manifold instances of exclusion in Delhi alone, adding, “It is the global businesses that need Aadhaar, not the poor”.

“If the Authentication does not come through or if one lacks Aadhaar, they are no better than ghosts. The situation is worsened because the Aadhaar project is coercive by nature. Such a programme cannot be said to be valid in view of Articles 14, 19 and 21”, added Mr. Diwan.

“Besides, The Aadhaar scheme does not envisage the possibility of an ‘opt-out’. To allow citizens who have enrolled there under to opt out is essential by virtue of informational self-determination”, Mr. Diwan continued.

Re-iterating his argument regarding the lack of counselling at the time of enrolment and consent of citizens not being entirely informed and voluntary, he relied on an affidavit of persons in the state of Meghalaya expressing the desire to opt out.

Moving on, Mr. Diwan read out portions from the affidavit of a technology expert who, having examined several enrolment agencies, affirmed that these agencies retain the sensitive biometric and demographic data of the citizens, to the ignorance of the UIDAI- “The confidential information is gathered and saved in logs which is accessible to even private persons...The architecture of the Aadhaar scheme is such that The UIDAI has no knowledge of the same or means of preventing it...Even if an audit has been carried out, there are no means of ascertaining that the act of retaining sensitive data has ceased...There are as many as six ways of hacking and skimming of biometric data...”

“It is the responsibility of the State to maintain a fiduciary relationship with its citizens in respect of this sensitive data that it is compelling them to part with”, remarked Mr. Diwan.

“Did the UIDAI respond to the letters addressed to it by the said expert?”, asked Justice Sikri. “Once he filed an affidavit before this court, the UIDAI served a notice on him. But this is how the Authority functions. Even earlier a FIR was registered against a journalist of The Tribune for showcasing the loopholes and bottlenecks in the Aadhaar project”, responded Mr. Diwan.

“Are there any safeguards against the misuse of the data gathered under Aadhaar as there are in respect of fraudulent swiping of credit cards?”, inquired Justice Chandrachud.

“No. The UIDAI insists that the biometric and demographic data of the citizens is secured by encryption. It is possible to hack the CIDR. Also, Once the data is saved, it can be accessed and utilised any number of times”, answered Mr. Diwan.

Further, Mr. Diwan drew the attention of the bench to the recent Aadhaar-based scams in Surat and Kanpur pertaining to PDS and fake enrolment respectively.

 “These episodes prove two points- one, that finger impressions can easily cloned, and two, that even iris scans can be manipulated by way of ‘reverse engineering’ and software tampering”, he remarked.

“How are the Authentication machines purchased?”, asked Justice Chandrachud.

“The UIDAI only lays down the technical specifications. The machines are purchaser from private manufacturers who may even be foreign entities”, replied Mr. Diwan.

He again relied on a reply to a RTI query revealing as many as as 6 crores 23 lakhs Authentication failures by reason of biometric duplication. “And considering that biometrics is a probabilistic system of identification, as more and more persons enrol under the scheme, this problem will only amplify”, he added.

Referring to an affidavit of an economist working at IIT Delhi, Mr. Diwan submitted that on account of Authentication failures, girls at a tribal school were not marked present if the finger prints did not match. “A girl present in flesh and blood in school has no significance. Besides, the surveillance commenced as early as in school and the records shall be retained for the entire lifetime. And this is being done with no statutory sanction”, he advanced.

“There may also be the event where teachers could be pulled up for inflating the number of students”, observed Justice Sikri.

Emphasising on the his earlier submission regarding the natural, inalienable right of every individual over their own body, Mr. Diwan quoted from Peter Benson’s article in the Oxford Handbook on Jurisprudence- “One’s right to their body is over and above the right to property...in a democracy, one cannot be compelled to use their body for a purpose they do not voluntarily endorse...”

Finally, he referred to Mahatma Gandhi’s protest against the Transvaal law mandating Indians in the region to compulsorily register themselves, being subject to physical examination and parting with finger prints.

Summing up his concerns as being in regard to, one, individual autonomy; two, constitutional trust; three, surveillance and the right to privacy; four, rule of law; and five, the extent of state domination that would ensue with the Aadhaar scheme being upheld, Mr. Diwan concluded his arguments.