Aadhaar Hearing: Everything About The Programme Is Unconstitutional, Says Shyam Divan

The second day of the crucial Aadhaar hearing concluded with Shyam Divan, representing the petitioners, continuing his arguments about how Aadhaar is unconstitutional.

Divan took note of the enrollment process for Aadhaar cards which was in place before the Aadhaar Act, 2016 came into effect. He said that Registrars were able to collect personal data, and even seek additional data without any government oversight. He pointed that the government had blacklisted 34,000 enrollment operators and the number has now risen to 49,000. He said these registrars were not just government agencies but included private agencies, state-owned banks and universities as well.

There was no statutory backing or valid contracts in place when data was collected in the pre-Aadhaar Act system , Divan said.

Divan also said that there were instances when fake iris scans and fingerprints were used to enroll.

Citing the landmark ruling of the Supreme Court which made privacy a fundamental right, Divan said that physical interference is no longer required to violate someone's privacy. Just the details of their transactions are enough to profile everything they do, he said.

Divan emphasised that in the privacy judgement the apex court had noted that public welfare can only be sustained when individual liberties and freedoms are respected.

Shyam Divan, the lawyer arguing for the petitioners, made the following arguments.

• Aadhaar is completely invasive and nothing about the process is voluntary
• There is no contractual relation between the UIDAI and the agency collecting private information of citizens
• We are being forced to part with private information with someone who we dont know and have no contractual relation with
• The machines used at the time of authentication process is are of poor quality which makes it difficult for senior citizens and manual labourers to enroll
• Everything about this programme is unconstitutional

Arguments regarding the validity of Aadhaar resume on the second day of the hearing.

The day’s hearing on the Aadhaar case are now concluded. The Bench rises.

Senior advocates, P. Chidambaram and Arvind Datar, who were representing two of the petitioners separately, explained how the Aadhaar Act 2016 didn't fulfill the criteria for a money bill. CJI Dipak Misra had asked them to explain.

They cited two landmark Supreme Court cases (Kihoto Hollohan and Rajam Ram Pal) and said that the apex court has the power to review laws passed by the Parliament on the basis of an irregularity.

Senior advocate Shyam Divan, who was appearing for the petitioners, began his arguments before the Constitution Bench in the Aadhaar case saying that the programme challenged here was unique as no "democratic society has adopted" anything similar to this in size and scope. Divan said that the petitioners are relying on material that "discredits the government's tall claims" about Aadhaar.

Calling the Aadhaar a "giant electronic mesh", Divan said the government "seeks to tether every resident of India to an electronic leash" through marketing strategies and by "employing smoke and mirrors.

Divan argued that the Aadhaar alters the relationship between citizen and State. "It diminishes the status of the citizen," he added. Divan said that the rights and liberties that are freely enjoyed are being made "conditional on a compulsory barter" through Aadhaar.

Divan added that the State is hence "empowered with a switch by which it can cause the civil death of an individual".

Divan said that Aadhaar enables the State to totally dominate an individual.

Shyam Divan, appearing for petitioners, said that current Aadhaar architecture goes beyond verification to 'tracking of a person'. It allows the creation of a complete profile of an individual's actions.

When asked by Justice Sikri how Aadhaar is different from giving biometrics to a foreign country when visiting on a visa, Divan said in such a case, biometrics are only matched when a person enters the foreign country. After that, the foreign government does not require fingerprints or any data tied to a person's fingerprints, through the rest of the stay.

Highlighting the difference between a pervasive and non-pervasive system, Divan said Aadhaar is a pervasive system because the government can build an electronic trail of the person's activities through cross-linking of databases. It doesn't matter whether anyone is actually tracking in individual, but that such an architecture is possible, he argued.

While Divan discussed the functions of the Unique Identification Authority of India, Justice Chandrachud makes the first observation of the proceedings. Ne noted that very few posts have been filled in the organization.

Divan pointed out how this demonstrates the lack of governmental oversight in the organization.

Shyam Divan went on to state what the petitioners are asking of the apex court.

• A declaration from the court safeguarding the physical autonomy of individuals against the State
• If this is not granted, a right to opt out of the Aadhaar program and for their data to be destroyed
• If the Aadhaar Act is held to be constitutional, the court must pass an order guaranteeing that no citizens will be deprived of any rights or benefits because they haven’t enrolled for Aadhaar.

If the Aadhaar programme is allowed to continue without being checked, it will "hollow the Constitution", Shyam Divan - one of the lawyers arguing for the petitioners - said, because it will fundamentally alter the relationship between the citizens and the state.

The Aadhaar program links basic and essential facilities with Aadhaar on a mandatory basis, which means it makes the exercise of fundamental rights and liberties of citizens dependent on having this number. Failure to comply means their access to basic facilities can be ‘switched off’ by the State. Divan argued that the Constitution does not permit this.

Here are the key highlights:

• Aadhaar is altering the relation between citizens and the state
• Reducing the citizens to servitude
• Incorrect to say privacy is an elitist concern, the nine judge bench upheld it
• Giant electronic mesh has been created enabling the state to build a person's profile, track their movements and in time affect their social behaviors

The Supreme Court bench hearing the argument consisted of Chief Justice of India Dipak Misra, and Justices AK Sikri, DY Chandrachud, AM Khanwilkar and Ashok Bhushan.

• No violation of privacy as the database is foolproof and secure.
• Aadhaar helped plug leaks in the distribution of subsidies and avoiding duplication.

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• Aadhaar violates the top court order that holds the unique ID to be voluntary until the final ruling.
• Fears about surveillance by the state.
• The issue of welfare and essential services being denied for lack of an Aadhaar number.

The hearing follows a Supreme Court Constitutional Bench’s unanimous ruling in August last year that privacy is a fundamental right.

During the last five years, the top court has dealt with subsequent challenges like the one against linking the ID with the Permanent Account Number used for filing taxes. The government has already extended the deadline to link Aadhaar to bank accounts and mobile subscriptions till March-end. And it has rejected privacy concerns saying the biometric database has never been breached.

Here’s a recap of legal challenges to Aadhaar.

The Supreme Court will begin hearing petitions challenging the validity of Aadhaar starting today.

The 12- digit unique identification number, backed by biometric data, is being opposed by many on security and privacy grounds. The hearing comes days after the Tribune newspaper, during its investigation, managed to gain access to the world’s largest database by paying Rs 500.

Also Read: Aadhaar Virtual ID: How To Use UIDAI’s New Damage Control Measure