Aadhaar Day 1- Shyam Divan: “Our Constitution repudiates Aadhaar to preserve itself, its binding values, and to preserve the advent of all intrusive State where it is not about citizens but numbers”

By Shrinidhi Rao and Nehmat Kaur

A 5 judge Constitutional Bench consisting of Chief Justice Dipak Misra, and Justices A.K. Sikri, D.Y. Chandrachud, A.M. Khanwilkar, and Alok Bhushan commenced the hearing of a list of 27 petitions challenging various aspects of the Aadhaar project on 17 January, 2018. Senior Advocate Shyam Divan began his arguments for the Petitioners. In his opening arguments he gave a detailed timeline and backdrop of the case and remarked that for 7 years, from 28th January, 2009 till the Aadhaar Bill was passed in March, 2016; Aadhaar project was working under an administrative order that had no statutory backing.

Amongst other issues, he highlighted that he will be raising the argument that eminent domain does not extend to the human body, and its autonomy.

He introduced the petitioners he is representing and pointed out that they are Magsaysay award winners, and social workers, including Shantha Sinha, Aruna Roy, Nikhil Dey, Kalyani Sen who have gathered from their research at the grassroots level that Aadhaar is exclusionary in its implementation. He also pointed out that the list of petitioners include 3 retired military officers who are concerned about threat to national security that is posed by Aadhaar.

He commented that with the new technology and architecture of democratic governance that is being employed by Aadhaar, the People’s Constitution is going to transform into a State’s Constitution. He compared Aadhaar to tethering citizens to an electronic leash, which will limit rights and make them conditional to a compulsory barter of voluntarily giving biometrics. Further,  he emphasized that “Our Constitution repudiates Aadhaar to preserve itself, its binding values, and to preserve the advent of all intrusive State where it is not about citizens but numbers.”

He aims to raise pertinent issues in his submissions that include:

  • Whether constitution of India sanctions surveillance state and society where routine transactions are recorded
  • Whether personal autonomy extends to biometrics
  • Whether rule of law mandates that where biometrics and demographic information collected, it is backed by law, and carried out by government alone, and preceded with informed consent
  • Whether Right to Privacy and right to be let alone entitle to protect identity without being forced to part with personal information

Mr. Divan focused on the following broad themes in his arguments–

UIDAI – structure and functions

In going over the structure of the UIDAI, he made the point that not only has there not been any mention of biometric data collection in the earliest iteration of the Aadhaar project, but also that there are no guiding standards in the form of the text of the Act, Rules, Regulations or Notifications to govern collection and maintenance of biometric information of individuals enrolling.

Responding to a comment from Justice Sikri that the guidelines presently envisaged in the Act are broad enough to cover such information, Mr. Divan stated that such collection was being done prior to the Act and was as such patently illegal – a violation of Fundamental Rights.

Surveillance and data leakage concerns

Mr. Divan then explained how authentication of an Aadhaar identity at various points have ramifications on an individual’s privacy. Citing an example of Aadhaar authentication at airports, for instance, he argued that under the current set of guidelines and lack of safeguards it would be very simple to trace an individual’s location and path and subsequently – depending on the authenticating device’s features – draw an accurate profile of the individual himself. This reveals the vulnerability in in the Aadhaar project.

Differentiating this level of authentication with biometric information for US Visas, as mentioned by Justice Chandrachud and Justice Sikri, Mr. Divan believes the Aadhaar project to be a pervasive system, where there is a possibility of cross-linking to different databases creating an unnecessary and potentially dangerous electronic trail.

He argued that data is not being used for the purpose it was initially sought for, enabling the creation of a totalitarian state. He argued that this is due to the flawed design of the act itself and how it has evolved over the years. The use of biometrics doesn’t work on principle and is certain to never work given the scale of population in India.

Evolution of the Aadhaar Programme

Mr. Divan made a broad argument that the Standing Committee on Finance Report addressed the many lacunae in the old Aadhaar Bill which have not been resolved and which formed the basis of early enrolments and early notifications demanding linkage for welfare schemes, benefits etc. The main points raised qua the Standing Committee Report are as follows:

  • Concerns in the report regarding data privacy, data security and data theft; Specifically the absence of data protection laws and the NHRC’s reservations on the issue of privacy.
  • Problems with efficacy when scaled up to a national level – which are becoming evident with so many “ghost” enrollments due to the fallibility of biometrics.
  • Concerns that done in the absence of a law, executive action mandating AAdhaar is unethical and a violation of Parliamentary procedures.
  • That hinging the implementation of the project on private players creates ore problems than is aimed to be solved.

Read our special issue on right to privacy here.