Aadhaar Day 2- Senior Advocate Shyam Divan: “How can the State compel me to part with personal information to a private entity?”

The 5 judge Constitutional Bench of the Supreme Court continued the hearing in the petitions challenging the Aadhaar Project. Senior Advocate Shyam Divan continued with his arguments. He started with reiterating on how the verification of the biometrics is based on a probabilistic system and pointed out that poor quality equipment is used at the point of authentication. Justice Chandrachud commented that in such a case, reading the biometrics of manual labourers and aged persons would be difficult.

Mr. Divan identified three issues to be examined in the Aadhaar Project, the integrity of the process, integrity of information collected, and invasion of fundamental rights -right to privacy, personal autonomy of body and information and compelled speech.

He noted that the lack of integrity of process is evident in the very first step of enrolment. He noted that the enrolment forms (which existed before the Aadhaar Act came into force) nowhere suggests that the information in the form has been disclosed voluntarily by the applicant. Further, the form is also silent on collection of or consent clause related to sharing of biometric data. He also pointed out that the enrolment process also lacks the element of an informed consent given that the enrolment centres do not provide counselling on how the demographic or biometric information may be used or shared. He submitted that the lack of any declaration that verifies the information provided in the enrolment form adds to the lack of integrity of the information collected.

At this juncture, Justice Chandrachud enquired whether there is a provision for opting out not consenting to the information being shared further. In response to this, Mr. Divan referred to an affidavit of an individual who while attempting to register under the Special Marriage Act was compelled to make an Aadhar Card. Despite having stated that they do not want their information to be shared with a private party, they were informed by the enrolment agency that the system would not proceed unless all terms are consented to.  He further indicated the portions in the form that asks the applicant to mention mobile number and even email id.

Mr. Divan argued that the system is flawed as it compels the citizens to share their demographic and biometric information with a private entity. On being enquired by Justice Chandrachud whether such information may be given to a private entity that is acting as an agency of the state, Mr. Divan stated that such sovereign function cannot be delegated to a private agency. He took the example of sting operation conducted by a TV channel around Delhi-NCR which revealed that private enrolment agencies were willing to share demographic information subject to certain payment. Justice Chandrachud however noted that information related to bank or address is constantly shared by individuals with different private entities. Mr. Divan responded by saying that the sharing in those situations is with consent and knowing with whom it will be used. In case of Aadhaar, the data is shared without knowledge of with whom it is being shared and for what purposes it may be utilised further. Citing the example of leak of Aadhaar card details of the Indian team captain, Justice Chandrachud sought to know of the safeguards that may be put into place in such a scenario.

Mr. Divan argued that if the Aadhaar numbers are being mandatorily linked with PAN card, welfare schemes and bank accounts, then mentioning that enrolling in Aadhaar is free and voluntary in the enrolment forms is of no consequence.

Arguments on behalf of petitioners will continue on 23rd January.


Read our special issue on right to privacy here.