On day 10, Mr. Kapil Sibal resumed his arguments and read out provisions from Israel’s biometric ID law dealing with definition and purpose of biometric databases, emphasizing that the ID cards are purely voluntary. He added that under said law, biometric data may be used only for the purpose for which it was collected. Further, access to the database is allowed only for specified purposes, and the law makes no provisions for meta-data. Comparing the Israel’s biometric ID law to the Aadhaar Act, Mr. Sibal noted how Aadhaar is mandatory and life-long, and how consent is illusory. Though the Aadhaar database can only be used for purposes authorized by law, “national security” is often misused as a legally authorized purpose in India. To emphasize its broadness, he pointed out that national security is grounds for even deactivating Aadhaar altogether, and added that several NGOs have been targeted citing national security concerns in the past.
Mr. Sibal moved on to his first proposition of the day, and began by saying that information is power. He then referred to the SC’s Puttaswamy judgement on privacy that equated information to knowledge, and read out excerpts from a Harvard Business Review article that spoke about how data-driven services like WhatsApp are so highly valued because of the information they provide. He pointed out that information, while inconsequential in silos, can still provide comprehensive pictures of personalities when aggregated.
Referring once again to the Puttaswamy judgement, Mr. Sibal admitted that the State does have a right to institute a national ID program, but it is necessary when doing so to ensure that said IDs are not made publicly available. With Aadhaar, we have public interest on the one hand, and personal information in public domain on the other. However, it cannot be rightfully claimed that linking Aadhaar to things like travel itineraries and health information is in public interest. Mr. Sibal said that the State cannot choose how one proves one’s citizenship – that right is undeniably reserved for the citizens themselves.
For his second argument, Mr. Sibal focused on the fact that Aadhaar is effectively mandatory despite contrary claims in the Act. Pointing to provisions like Section 32 (authentication logs), Section 26 (metadata) and Section 57 (use of Aadhaar for other purposes), he said it is clear that the true intent of Aadhaar is to establish itself as an exclusive proof of ID, which can be used for purposes not covered by the Aadhaar Act. If consent is necessary for Aadhaar authentications, but entitlements can be had only through Aadhaar, what is the point of obtaining consent to begin with, he asked.
Mr. Sibal’s third submission was about concentration of power resulting from massive amounts of personal data held by a single entity, and he read out portions of the Puttaswamy judgement to support his contention that such concentration of power is undesirable. He also added that the respondents must provide copies of audit reports from audits conducted under the Aadhaar Act.
Speaking next on proportionality, Mr. Sibal said determinations of legislative proportionality hinged on two considerations: (1) objectives of the legislation (2) whether the legislation is the least restrictive way to achieve said objectives. In this case, he said, the scope of Aadhaar has no nexus with the entitlements it seeks to streamline. After a brief discussion on the South African “culture of justification” initiated by Justice Sikri, Mr. Sibal submitted further that the very concept of Aadhaar is inconsistent with the doctrine of proportionality. He highlighted several provisions from the Aadhaar Act that confer wide powers on the UIDAI.
Mr. Sibal then questioned the prudence of entrusting personal data with the State who could not even prevent the pilferage of food grains. He also pointed out that it would be unfair to deny entitlements to deserving non-residents merely for want of a certain proof of ID. As most entitlements flow from Part III of the Indian Constitution, he said denial of entitlements would be tantamount to denial of fundamental rights, and would be unsustainable under the tests of Article 14 (right to equality) or Article 21 (right to life and personal liberty) of the Constitution.
Mr. Sibal then referred to the Puttaswamy judgment once again in context of making biometrics a pre-condition for availing entitlements, and re-iterated that imposing a condition to exercise a fundamental right is a violation of that fundamental right. Defences such as lack of infrastructure will not apply.
Mr. Sibal also questioned the need for Aadhaar when Section 14A of the Citizenship Act already makes provisions for national ID cards issued as proof of citizenship. Identity may be a like an umbilical cord to a citizen, but his/her primary identity must not be that of an Aadhaar card holder, said Mr. Sibal. The opinion of Justice Das in In Re: Kerala Education Bill was also read out to support Mr. Sibal’s contention that Aadhaar cannot be made mandatory. He termed it unconstitutional to force future members of the society like children to surrender their rights to the Aadhaar system.
Justice Chandrachud intervened at this point to ask why can the government not require the individuals to furnish proof of identity to avail entitlements. When Mr. Sibal offered in response that one’s status as a citizen is itself the basis for claiming entitlements, CJI Misra said it might be necessary at times to prove that status. Mr. Sibal answered that Aadhaar is not the only means to establish status, and that one must have the liberty to use any method of ID verification for claiming entitlements.
As CJI Misra raised an objection to bartering one fundamental right for another, Justice Chandrachud clarified that Mr. Sibal’s argument was about the unconstitutionality of providing just one means of identity verification. Justice Chandrachud also asked if it would be true to assume that everyone is expected to have at least one form of ID verification, which Mr. Sibal answered in the affirmative. He added that individuals must have alternate means to avail entitlements in the absence of a valid ID proof.
Mr. Sibal agreed with the bench that choice was the core of the argument and that the individuals must have a choice to decide how they want to establish their identity in a reasonable and lawful manner.
Mr. Sibal also referred to multiple schemes where Aadhaar is mandatory (bonded labour scheme, national child labour scheme etc.), highlighting them as instances of rights violations.
Mr. Sibal’s final submission was on pilferage of food grains. He called this a constitutionally invalid scheme, and pointed out that it does not stop leakage of food grains, instead deserving persons have been excluded. He contended that the scheme is disproportionate.
To Justice Sikri’s question on the existence of multiple passports/other IDs, Mr. Sibal answered that there have also been plenty of reports of duplicate Aadhaar cards and it is an issue which should be dealt by law. More importantly, he said that this does not justify mandating the production of just one specific ID.
With this, Mr. Sibal concluded his arguments.
Senior Advocate Gopal Subramaniam argued next for the petitioners, and he started by submitting that the Constitution has to be abided by even in the face of rapid advancements in technology. Referring to the Puttaswamy judgement, he said there should be no interference with fundamental rights. He further submitted that privacy is a state of being, which cannot be easily described, and that intrusions on this right must be minimal. It is important to ascertain the true purpose of the Aadhaar database, said Mr. Subramaniam. He added that there are alternative means to fulfill the purposes that Aadhaar seeks to achieve, and that the Aadhaar Act is dangerous, attacks State accountability, and has the effect of dis-intermediating the State.
The hearing will continue on Tuesday, 20th February, 2018.