The hearing commenced on Wednesday (24th January) with senior advocate Shyam Divan discussing the provision of section 59 of the Aadhaar (Targeted Deliveries of Financial and Other Subsidies, Benefits and Services) Act of 2016. He stated that as per the text of the section, only the actions of the Central government, being in pursuance of the notification dated January 28, 2009 establishing the UIDAI, are retrospectively validated after the coming into force of the Act. Such a validation does not extend to the acts of private entities like the enrolment agencies.
Justice Sikri pointed out that prior to the enactment of the law, the enrolment agencies were appointed by the UIDAI, to which Mr. Divan replied, “Under the pre-Act regime, there was no privity of contract between these private entities and the UIDAI”.
Justice Sikri retorted by stating that since UIDAI has been established by the Central government, all actions flow therefrom.
Justice Chandrachu questioned whether Aadhaar was being sought by private entities before the coming into force of the statute? To this Mr Divan replied stating a need to procure definite factual data before responding.
Justice Chandrachud observed that the Justice K. S. Puttaswamy judgment lays down that any encroachment on the right to privacy must be backed by a valid law. It was noted that Section 59 attempting to accomplish that in respect of the pre-Act breaches is in the nature of legal fiction.
“The aspect of informed consent is significant. All breaches preceding the Act cannot be subsequently validated on the premise that such consent was always present. Even if the constitutionality of the Act is upheld, section 59 must be given the narrowest interpretation”, remarked Mr. Divan.
Thereupon, the senior advocate proceeded to summarise the grounds of challenge to the Act of 2016 under various heads as given under-
- The concern about how the Aadhaar programme enables state surveillance.
- The infringement of one’s privacy, which was carried on without any statutory backing from 2010 to 2016. And even after the enactment of the law, one is being compelled to disclose their every move to the State by way of digital footprints and the silos of information allowing for extensive profiling.
- The concept of limited governance which also finds place in the Constitution. By being empowered to deactivate or not issue Aadhaar numbers, the State has been given the switch to cause the civil death of any individual. Instead of bringing about transparency in the government, the citizen is being compelled to become transparent to the State.
- He stated that regarding the introduction of the Aadhaar Act as a money bill, which senior advocates Mr. Arvind Datar and Mr. Kapil Sibal, other counsels for petitioners, would elaborate.
- The means and manner of collecting, storing and securing sensitive data, which is completely compromised, and hence, falls foul of Articles 14 and 21. The enrolment agencies have no direct relationship with the UIDAI; there is no mode of opting out if once enrolled; and even the consent of the individual applying for enrolment, in respect of their biometric and demographic information, cannot be said to be completely informed”.
He also added that there was no provision for credible verification of this data. He pointed out that Biometrics being a probabilistic proof of ID, has been acting as an instrument of exclusion from social security schemes. “If your Biometrics do not match, then a living flesh-and-blood person is no better than a ghost”, said Mr. Divan.
It was asserted by Shyam Divan that in a democracy, a citizen cannot be forced to adopt such a highly invasive form of identification. He also indicated that the concept of the Central Identities Data Repository (CIDR), being a centralised database for all information, itself reflected authoritarianism.
He reinforced his argument as to how enrolment agencies, being private players, could not be trusted to secure “informed consent”. With regard to the term ‘resident’ as defined in section 2(v), Mr. Divan argued that the Aadhaar enrolment form merely required self-certification.
“The individual needs to certify himself that he has been residing in India for a period of 182 days. There is no proper verification. It is an arbitrary definition”, said Shyam Divan.
Thereafter, the discussion veered to the circumstances for cancellation of an Aadhaar number. Mr Divan conveyed his concern regarding the power of the Authority which empowered him to cancel one’s Aadhaar if it appears fraudulent.
“The Authority can simply switch off a person”, remarked Mr. Divan.
To this Justice Sikri questioned why an Aadhaar number must not be cancelled if it had been procured fraudulently. Mr. Divan responded stating that the concern was regarding the conferment of such a power.
Finally, Mr. Divan discussed the provisions of other legislations mandating the sharing of biometric data and the respective safeguards-
- Section 15, Census Act of 1948; restricting the records of Census from being open to inspection or admissible in.
- Section 7, Identification of Prisoners Act of 1920; providing for the destruction of the photographs and records of measurements upon acquittal.
- Section 32A, Registration Act of 1908; mandating affixation of photographs and fingerprints to any document presented for registration.
- Section 6, Bombay Habitual Offenders Act of 1959; empowering the District Magistrate to obtain impressions of fingers, palm, foot and photographs of registered offenders.
