Aadhaar Hearing [Day 25]: What Is The Proportionality Of Suspecting Everyone To Be A Terrorist? SC Asks AG

In context of the proportionality of the mandatory Aadhaar linkage with mobile phones to curb terrorism, Justice Sikri remarked, “Does it pass the test of proportionality to treat every citizen as a terrorist?” Justice Chandrachud also inquired rhetorically, “Which terrorist applies for a SIM card?”

Continuing his submissions on Day 25 of the Aadhaar final hearing, Attorney General KK Venugopal addressed the concerns expressed by Justice DY Chandrachud in the light of the power of the UIDAI under Section 54(2)(a) of the Aadhaar Act of 2016 to frame regulations on inter alia what may constitute ‘biometric information’ for the purpose of the open-ended definition in Section 2(g) of the Act.

Justice Chandrachud had on Wednesday remarked, “It has been left to the unguided discretion of the Authority to demand, in the future, samples of DNA, blood, urine or even sweat...does this power itself pass the test of proportionality?”

The AG on Thursday cited the judgment of the US Court of Appeals in Haskell v. Harris, wherein the 2004 amendment to California’s DNA and Forensic Identification Data Base and Data Bank Act of 1998, which required law enforcement officers to collect DNA samples from all adults arrested for felonies was challenged. It was contended that the 2004 amendment violated their Fourth Amendment right to be free of unreasonable searches and seizures.

The court had observed, “While it is hypothetically possible that, at some future time, rogue Government employees may record and analyze more extensive DNA information, or that the California Legislature might expand the permissible scope and uses of the DNA data, we cannot legitimately weigh the constitutionality of the current legal regime by arguing about hypothetical and highly speculative actions that would undeniably violate the DNA Act, as amended by the 2004 Amendment, as now in effect...Our job is limited to resolving the constitutionality of the program before us, as it is designed and as it has been implemented, and we must base decisions not on dramatic Hollywood fantasies . . . but on concretely particularized facts developed in the cauldron of the adversary process and reduced to an accessible record...While we acknowledge the seriousness of [defendant’s] concerns about the possible misuse and future use of DNA samples, we conclude that these hypothetical possibilities are unsupported by the record before us and thus do not have any substantial weight in our totality of the circumstances analysis...If and when such changes occur, future courts will be available to consider actual facts and applications...”

In context of the right to privacy, the AG also cited the 1998 judgment of the apex court of India in Mr. ‘X’ v. Hospital ‘Z’, wherein it was held that “Ms. 'Y', with whom the marriage of the appellant was settled, was saved in time by the disclosure (by the respondent hospital) of the vital information that the appellant was HIV(+). The disease, which is communicable, would have been positively communicated to her immediately on the consummation of marriage...the Fundamental Rights available to her under Article 21, which, as we have seen, guarantees "Right to Life" to every citizen of this country, includes right to lead a healthy life so as to enjoy all faculties of the human body in their prime condition, (and hence,) the respondents (hospital administration), by their disclosure that the appellant was HIV (+), cannot be said to have, in any way, either violated the rule of confidentiality or the right of privacy. Moreover, where there is a clash of two fundamental rights, as in the instant case, namely, the appellant's right to privacy as part of right to life and Ms. 'Y's right to lead a healthy life which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court...”

Thereupon, the AG also quoted excerpts from Fordham Urban Law Journal ‘Note: Finger Imaging: A 21st Century Solution to Welfare Fraud at our Fingertips’, discussing the technology of finger imaging; that finger imaging is not a violation of an individual’s constitutional right to privacy; that it does not amount to improper search and seizure; and that it complies with the requirement of due process of the law: “Despite the initial monetary outlay, counties and states that implement a finger imaging system, such as AFIS, can save more than the price of it in the first year alone... The millions of dollars saved because of finger imaging become available to assist the disadvantaged, however, helping them to get jobs or furthering their education...In addition, finger imaging programs, such as Automated Finger Imaging System (AFIS) would not lead to any unnecessary litigation because the computer at the local welfare office will detect any match during the application procedure before any fraud has been committed...Finger imaging is an easy, effective way to combat welfare fraud and one of the best methods of personal identification currently available. In the near future, many of its applications are certain to become prevalent in our society...”

On Thursday, Justice AK Sikri and Justice Chandrachud refuted the AG’s contention that Aadhaar would go a long way in averting banking frauds and fraudulent acts based on multiple identities such as benami transactions: “Bank frauds occur not because the identity of the borrower of a loan is not known to the bank, but because the management of the bank is hand-in-glove with the one perpetrating the fraud.” The bench observed that Aadhaar cannot prevent an individual from operating a layer of commercial entities to engage in a chain of transactions. The bench also noted that the Aadhaar scheme may, at the most, aid in detecting and avoiding frauds in the dispensation of welfare-oriented ‘Subsidies, Benefits and Services’ covered under Section 7 of the Aadhaar Act.

In context of the proportionality of the mandatory Aadhaar linkage with mobile phones to curb terrorism, Justice Sikri remarked, “Does it pass the test of proportionality to treat every citizen as a terrorist?” Justice Chandrachud also inquired rhetorically, “Which terrorist applies for a SIM card?”

AG cited the example of internet shut down in Kashmir to ensure that stone pelters don't communicate with each other.

[This report is based on the tweets by Advocate Prasanna]