Aadhaar hearing in Supreme Court: Will State give citizens rights only if they agree to being tracked forever, asks lawyer Shyam Divan

Hearing in the Aadhaar case entered day two in the Supreme Court on Thursday with senior counsel Shyam Divan continuing arguments for the petitioners.  The five-judge Constitutional bench sat later than the appointed time of 11.30 am as some of the judges were hearing the Padmaavat case . Divan started by showing the court diagrams differentiating between deterministic and probabilistic methods of identification. This was in continuation of his argument that Aadhaar is a probabilistic methods of identification and thus cannot be made compulsory.

Divan went on to emphasise that machines used for authentication are of a lower quality, and explained the technical aspect of Aadhaar. Justice Chandrachud interjected here with an observation that in case of manual labourers or old people, the biometrics might be unreadable.

Divan also argued that there was no informed consent present for many while enrolling for Aadhaar — those who enrolled were not fully aware of its implications. He pointed at the lack of declaration or verification on the form as proof of the absence of integrity of the process. He asked if the State can announce a barter system where citizens are given rights only if they submit to being tracked for the rest of their lives. [caption id=“attachment_4236641” align=“alignleft” width=“380”] File image of Aadhaar registration. Reuters[/caption] Divan argued that the scheme is defective by design as it compels people to part with sensitive information and give it to another private person. Justice Chandrachud asked him if it would make a difference if the private party is an agency of the State to which Divan answered that such an important sovereign function cannot be delegated to a private agency. The discussion then turned to the pre-Aadhaar Act scenario when the programme was implemented in 2009 (the petitioners are challenging both the scenarios — the one between 2009-16 and the one post the enactment of Aadhaar Act, 2016). Justice Chandrachud, then, pointed out that citizens are always giving out private information to private players like while getting a mobile connection. Divan answered that in case of Aadhaar you give your information to someone you don’t know and have no contractual relation with. He said that the private party is outside the control of the UIDAI and can use the data for their own commercial purposes. Turning to the post-Aadhaar Act scenario, Divan said that while the form says Aadhaar enrollment is voluntary, if you need it for a bank account, PAN card, then the voluntariness becomes academic. After this the bench rose for lunch. It will sit again at 2.30 pm. Day 1 proceedings On Wednesday, the first day of the hearing, the court was told that Aadhaar was “an electronic leash” to which every resident of India was tethered, and a violation of the Constitution, as it reduces the recognition of an individual to a number. Asserting that Aadhaar reduces the individual identity to a numerical, the petitioners had argued that the “government has rolled out an ill understood programme that seeks to tether every resident of India to an electronic leash”. “If the Aadhaar Act and programme is allowed to operate unimpeded, it will hollow out the Constitution, particularly the great rights and liberties it assures to citizens,” Divan had said. He also said the State must come up with alternative and less-intrusive identification schemes which did not act as instruments of exclusion. Brushing aside the Centre’s contention that a challenge to Aadhaar was “elitist”, Divan said the question is “whether the Constitution of India allows the State to embrace this new programme or whether the Constitution repudiates this giant electronic mesh”. He referred to the judgment that had upheld the Right to Privacy and said that challenge to Aadhaar was not elitist. In a spate of questions from the bench, Justice Chandrachud asked Divan if the State could not compel the citizens to part with their biometric profile in larger public interest. The State could ask for the biometric identification of teachers and students for the implementation of Right to Education Act or for mid-day meal scheme for which crores of rupees are spent, the judge observed. This report derives extensively from tweets by Gautam Bhatia ( @gautambhatia88) and Prasanna S ( @prasanna_s). With inputs from IANS