Aadhaar Hearing: Day-1 (Summary) ‘Eminent Domain Does Not Extend To Human Body’, Argues Shyam Divan

The hearing on a string of writ petitions challenging the constitutionality of the Aadhaar (Targeted Delivery of Financial and Other Subsidies, Benefits and Services) Act of 2016 commenced on Wednesday before the five-judge constitution bench of the Supreme Court.

Given the critical significance of the matter in issue and the exhaustive nature of the hearing, Attorney General KK Venugopal advanced a suggestion to the bench, “In view of the hearing in the Ram Janambhoomi matter scheduled to commence from February 8, please allocate time slots to the many advocates in respect of all the writ petitions to make their respective submissions.”

Backing the AG’s suggestion, senior counsel Shyam Divan, appearing on behalf of SG Vombatkere, one of the petitioners, said, “We have also distributed topics among ourselves to make submissions on.”

Thereafter, Divan proceeded to give the bench a brief summary of the matters in issue: “The Aadhaar project, starting from January 28, 2009, is an ongoing project. Up till July 7, 2016, the project was carried on solely on the basis of a Central Government notification. It is this project which is under challenge. Then on July 7, 2016, the Aadhaar Act came into force which ratifies the project. The Act only covers some aspects of the project; even if the Act is struck down as unconstitutional, the Aadhaar project does not come to an end. Then there are the subordinate legislations; the rules and regulations framed under the Act of 2016. There are also collateral legislations, particularly the Money Laundering Amendment Rules of 2017. Finally, there are the 139 notifications issued by various ministries, departments and civil authorities under section 7 of the Act of 2016 as well as circulars issued under other parallel legislations.”

By way of opening statement, Divan submitted that the Aadhaar project is one “without precedent” and has the potential to “hollow out the Constitution”, particularly the fundamental rights. Referring to the project as a “giant electronic mesh”, the senior counsel said that it shall turn the “citizen’s Constitution” into the “State’s Constitution”. Calling the project a “barter of biometric information for the purpose of authentication to be entitled to receive essential facilities”, Divan said that it gives the state “the switch to the civil death of an individual”.

Thereupon, Divan proceeded to list the disputed issues - whether the Constitution sanctions a surveillance society; whether an individual’s personal autonomy extends to their biometrics; whether the prevailing Aadhaar framework complies with the mandate of the Rule of Law which requires statutory backing, exclusive government involvement and informed consent; whether the Act of 2016 could have been introduced as a money bill; the right of a citizen to personal identity; inclusion of minor children; whether individual autonomy extends to freedom of determining the extent of personal information to be put out; concerns of data protection.

Expressing broadly the relief sought, the senior counsel submitted, “Our stand is that eminent domain does not extend to the human body”. He insisted on mandatory instructions that persons already enrolled under the project be allowed to opt out should the Act of 2016 be upheld, alternative ID proof may also be deemed acceptable; and that there be no electronic trail in respect of the biometrics disclosed.

With a view to elaborate the legislative history of the Aadhaar project, Divan drew the attention of the bench to a chronology of events: the Central Government notification dated January 28, 2009, for the establishment of the UIDAI; the launch of the Aadhaar programme in rural Maharashtra in September 2010; introduction of the National Identification Authority of India (NIA) Bill, being on identical lines as the Aadhaar Act, in December 2010, and the concerns expressed in respect thereof by the Standing Committee on Finance; and the institution of PILs on the right to privacy in the Supreme Court, including one by (retd) Justice KS Puttaswamy in November 2012.

He also drew the attention of the bench to the earlier interim orders passed by the apex court in connection with the Aadhaar controversy. On September 23, 2013, it was ruled that no person shall be made to suffer for not possessing a Unique Identification Number even if the same has been mandated by any government authority and that the Aadhaar card shall be issued only after due inspection so as to not issue the same to illegal immigrants. On March 24, 2014, in SLP (Crl.) 2524/2014, it has been reiterated that no one shall be deprived of any services or social schemes for the want of Aadhaar and all the government authorities had been directed to accordingly modify any circulars or notifications issued by them. The order dated September 23, 2013, was reaffirmed on March 16, 2015. Thereafter, on August 11, 2015, a 3-judge bench had held that the Union of India shall publicise, via both print and electronic media, that Aadhaar is not mandatory for any social security schemes other than public distribution system and the LPG distribution scheme. Finally, on October 15, 2015, a 5-judge bench of the top court had added the MGNREGA scheme, National Security Assistance Programme, PM Jan Dhan Yogana and Employees’ Provident Fund Scheme to the earlier list of two schemes.

Further, it was held that the order dated September 23, 2013, shall continue to be in force and Aadhaar shall be purely voluntary till such time the matter is finally decided by the court one way or the other.

Thereafter, Divan mentioned the passage of the Aadhaar Bill on March 16, 2016; the coming into force of the Act on July 7, 2016; the 139 notifications issued under Section 7 of the Act of 2016; judgment dated February 6 of the Supreme Court in Lok Niti Foundation v UOI in so far as it was held therein that Aadhaar is not mandatory for obtaining new telephone connections; the Money Laundering (Amendment) Rules notified on June 1, 2017, mandating Aadhaar for opening and maintaining bank accounts, investment in mutual funds, insurance policies and carrying out transactions of more than Rs. 50,000; judgment in Binoy Viswam v UOI, wherein it was observed that Aadhaar shall be voluntary, except necessitated by statute as in the case of Section 139AA of the Income Tax Act of 1961; the 9-judge bench decision in Justice KS Puttaswamy matter upholding the right to privacy as a fundamental right; and finally, the interim order of the apex court dated December 15, 2017, extending the deadline for mandatory Aadhaar linkage with bank accounts, mobile services and other schemes to March 31.

He threw light on the practical problems encountered by reason of the mandate of Aadhaar -- lack of feasibility of enrolment for a large portion of the population by reason of remoteness etc; biometrics of persons below 15 years of age and above 60 years are not reliable, which has been confirmed by the UIDAI and even the Act of 2016 provides for upgrade of data every 2 years; how Aadhaar acts as an instrument of exclusion by restraining access to essential social services; as per the reply to a RTI query dated January 15, 2017, as opposed to the expected 0.057% of the population, rejection of authentication on account of duplication of biometrics has ensued in respect of 6.23 crore persons; minor children, even for procuring birth certificates, being compelled to part with biometric data before attaining the age of consent; the systems requiring one to give fingerprints twice and thrice, which may result in accounts being debited more than once; and concerns regarding national security and financial integrity on account of a centralised database.

He also refuted the ‘purpose’ argument advanced by the government in favor of Aadhaar, relying on the reply dated April 28, 2015, to a RTI query that of the persons enrolled for Aadhaar, barely 2 lakh people did not have any ID before that.

He submitted, “Systems for ID verification are of 2 kinds - first, deterministic, such as the CVV on credit cards, one time passwords etc, and second, probabilistic, like fingerprints, iris scan and photograph relied upon by the UIDAI. The UIDAI uses a template that reduces finger impressions to a scale and then picks up, say, 100 points from it. How many points should match for the verification to succeed is a matter of value judgment of the UIDAI. Now this is a constitutional issue- how can my constitutional or statutory rights be probabilistic? How can I be denied the same on account of authentication failures? Fingerprints of the same person may be different at different angles.”

Emphasising on the heightened unreliability of framework of the Aadhaar Project, as it existed prior to the Act of 2016, he discussed the organizational hierarchy, as contemplated in the notification dated January 28, 2009, the biometric data of the residents applying for enrolment passing through the enrolling agencies, which may be private players, to the registrars and the Registrar General of India, and finally, to the UIDAI.

Referring to the composition of the UIDAI, the senior counsel stated that the body has 115 members, of which 77 are support staff, 33 members are in respect of the states and UTs, and five for the Centre.

Further, he spoke about the scope and remit of the UIDAI in the implementation, maintenance and upgrade of the Aadhaar scheme.

“There is no government control at all at the stage of gathering of the confidential information. The right of an individual to his personal information was left at the mercy of privacy parties,” he said.

At this juncture, the bench posed a series of questions to the senior counsel.

In return, Divan said: “Biometrics may be understood as any measurable element having regard to the human body. It could be a voice sample or even the DNA, or the fingerprints, photograph and iris scan, as mandated by the Aadhaar scheme. But a reference to the notification dated January 28, 2009 reveals that there is no mention of gathering of biometric data therein.”

“Is this charter (referring to the Executive notification) sufficient for collecting biometric data? Minimum governance ought to have been provided for by the mini cabinet in the form of the Group of Ministers issuing the notification. The whole programme is bad in law until the enactment of the legislation. And the statute does not help either. By validating everything done in pursuance of the notification in its Section 59, the Act of 2016 is bad too,” he said.

“So you are saying that anything done or any action taken under the project between 2009 and 2016 should be nullified,” inquired the bench. “Absolutely,” replied the senior counsel.

“After the coming into force of the legislation, how can the Executive order sustain? The related problems should go away too”, remarked Chief Justice Dipak Misra. “You may be right,” Divan said.

Emphasising on the encroachment on privacy, he contended, “The UIDAI reader has Global Positioning System (GPS) that reveals the location of any person at any point of time. Even if there is no GPS, by reason of the interface between the Central Identities Database Repository (CIDR) and the fingerprint reader, it is revealed that one was authenticated at a particular place at a specific time.”

In response, Justice Chandrachud said, “There are two issues - one, regarding the privacy, and second, whether the data held in the CIDR tracks back and is disclosed when you are authenticated. The answer to the latter is ‘no’”.

“Is this not similar to the biometric authentication for border control in New York,” inquired Justice AK Sikri. “The biometric data shared for the purpose of border control in New York is confined to the particular system where it is matched for verification. Here, it becomes a pervasive system,” Divan said.

“Is it your apprehension that the state uses the data,” asked Justice Chandrachud. “There is a danger of a democratic state turning into a totalitarian one. Section 57 of the Act of 2016 could give rise to a surveillance society,” answered the senior counsel.

In response to an earlier query by Justice Ashok Bhushan that the guidelines are broad and all-encompassing, Divan stated, “The terms are very general. I can change my password, not my fingerprints. Biometric data is irreplaceable.”

“As a debate on the argument advanced by you, did you imply that requiring biometric authentication from school students becomes a ghost for the child, depriving him of the mid-day meal scheme,” asked the Chief Justice Dipak Misra. “What I meant is that it is a possibility. Not that the State would be so ruthless as to deprive a child of the mid-day meal,” Divan replied.

“Article 21 confers the Fundamental Right to Free Education. The Aadhaar scheme serves as a means for checking that both students and teachers are coming,” said Chief Justice Misra. “There might be wastage of public money on the mid-day meal scheme, if there are no means of ascertaining whether there are children and if yes, how many. The Aadhaar scheme helps in the same,” added Justice Chandrachud.

Report of Standing Committee on Finance on NIA Bill of 2010

Divan read out the concerns expressed by the Standing Committee in its report dated December 30, 2011, in respect of the NIA Bill.

He said the Bill is identical to the Act of 2016, except for Sections 7 and 57 of the latter.

In support of his argument that Aadhaar acts as an instrument of exclusion, Divan quoted, “Estimated failure of biometrics is expected to be as high as 15% due to a large chunk of population being dependent on manual labour. And these are poor and marginalised sections of the society. So while the poor do need ID proofs, Aadhaar is not the way to go.”

With regard to the issues involved in unique identification numbers, he cited problems observed in the Report, such as, “a) security and confidentiality of information, imposition of obligation of disclosure of information so collected in certain cases, (b) impersonation by certain individuals at the time of enrolment for issue of unique identification numbers, (c) unauthorised access to CIDR, (d) manipulation of biometric information, (e) investigation of certain acts constituting offence, and (f) unauthorised disclosure of the information collected for the purpose of issue of unique identification numbers”.

He also quoted the example of the UK abandoning a similar project even though it was not mandatory like the Aadhaar scheme, the concerns voiced by the NHRC, the threat of encroachment on civil liberties, the lack of analysis of the financial implications of the Aadhaar project, and the potential use of Aadhaar by illegal residents.

Discussion on introduction of Aadhaar Act as Money Bill

Divan submitted, “The Aadhaar Act should fail as it involved the exercise of colourable legislative power. It was incorrectly introduced as a Money Bill in the Lok Sabha.”

“Can the Court question the stance of the Speaker that a Bill is a Money Bill,” asked Chief Justice Misra.

At this point, senior counsel P Chidambaram, referred the bench to the 2007 judgment in Raja Ram Pal v Hon’ble Speaker, Lok Sabha, wherein it was observed, “Article 212 seems to make it possible for a citizen to call in question in the appropriate court of law the validity of any proceedings inside the legislative chamber if his case is that the said proceedings suffer not from mere irregularity of procedure, but from an illegality. If the impugned procedure is illegal and unconstitutional, it would be open to be scrutinized in a court of law, though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular."

Senior counsel Arvind Datar also made brief submissions in connection with the relevant provisions of Articles 110 and 119 of the Constitution.

In view of the 2014 judgment in Mohd Saeed Siddiqui v State of UP, Chidambaram and Justice Chandrachud agreed that the decision of the Speaker on whether a Bill is a Money Bill shall be final for the members of the House of the legislature, but the same may be called into question in the courts on account of an illegality.