Aadhaar hearing: Supreme Court questions why both right to privacy and right to food cannot be secured under the Constitution
The Bench observed that the lack of choice with the means of identification indicated a lack of proportionality with the restriction imposed.
Editor's Note: This copy was published on 19 April, 2018. It is being republished in light of the Supreme Court's verdict on the constitutionality of Aadhaar likely being pronounced tomorrow.
On Day 30 of the Aadhaar hearings, senior counsel Rakesh Dwiwedi continued his arguments on behalf of the UIDAI. First, the alternative methods of identification under Section 7 were discussed extensively as a solution to exclusion. The Bench observed that the lack of choice with the means of identification indicated a lack of proportionality with the restriction imposed. Lastly, the issue of dignity under the Constitution, and the interplay of the right to privacy with the right to food were discussed in detail.
Section 7 alternatives to deal with exclusion
First, the arguments on the issue of exclusion under the Aadhaar Act were continued. Dwivedi first discussed that the Parliament was conscious that exclusion could happen and thus had provided three alternatives under Section 7. These three alternatives are: to undergo Aadhaar authentication, to furnish proof of possession of an Aadhaar number, and if no Aadhaar number has been assigned, the individual must apply for an Aadhaar number and provide alternative means of identification in the meanwhile.
The Aadhaar (Enrolment and Update) Regulations, 2016, were also quoted, including Regulation 12, which directs that Central or State agencies which require Aadhaar, must provide enrolment facilities to ensure the enrolment of beneficiaries who had not yet enrolled in Aadhaar. Thus, the counsel concluded that denial based on Aadhaar was not possible.
Ration card option for NFSA benefits
Next, the counsel drew the attention of the Court to the notification issued under Section 7 of the Aadhaar Act, mandates Aadhaar for the delivery of entitlements under the National Food Security Act, 2013. It was pointed out that the notification allows those who have not enrolled for Aadhaar to provide ration cards as an alternative. Further, if one member of a family is unable to authenticate, another member of the family may do so.
Alternative ID option applies only for those who have applied for Aadhaar
The Bench, here, observed that there may be areas in the country, such as Jammu and Kashmir, Sikkim, etc., where Aadhaar had not completely permeated. It was argued that the alternatives under Section 7 would apply in such a situation. Further, until the judgment, in this case, is issued, there was no compulsion under Section 7. The counsel, here, clarified that the third alternative would apply only when the individual had applied for an Aadhaar number.
No choice with ID indicates no proportionality
Further, it was argued that the Central government had the power to replace the identification based on which a benefit, such as under the PDS (Public distribution system) scheme, is to be obtained. For instance, the ration card requirement can be replaced with a requirement for the Aadhaar card. Every institution, it was argued, will have some kind of identification procedures which need to be followed.
He further argued that people strive to be recognised, as a matter of dignity and pride. Further, no right is absolute. The Bench, here, observed that there must be a choice of identity, and the absence of choice of means of identification points to an absence of proportionality in the restriction imposed. To this, it was again argued that in order to receive benefits from an institution, the regulatory requirements prescribed for it must be complied with.
Disclosure of information through biometrics
The Bench next observed that when sensitive biometric data is attached to every transaction a person undertakes, Aadhaar ceases to be a mere means of identification. To this, it was argued that only one finger and one iris is used for authentication and that such finger impressions do not divulge any details on anyone.
The Bench, here, observed that while a fingerprint by itself does not disclose information when combined with other information, it could create a complete profile of the person. Thus, the need for data protection arises. When the counsel mentioned that any data was disaggregated between the various requesting entities, the Bench observed that such information and records with these requesting entities could easily be aggregated.
Authentication from morning to night
Further, it was argued that in most cases, for example acquiring a SIM card or linking the PAN card, authentication would only be done once, so there was no question of authentication or tracking of a person’s activities from morning to night.
To this, senior counsel Shyam Divan, arguing for the petitioners, pointed to demonstration made in Court of a withdrawal of money using a thumbprint, and further for the need of a thumbprint open FDs with a bank. This, he argued, indicates tracking. To this, Dwiwedi countered that no law requires authentication each time a person transacts and that FDs were only opened once or twice in a year.
Right to privacy and right to food under the Constitution
Dwivedi then continued on the point of dignity, arguing that under the Constitution, Preamble required the security to all citizens: economic, political and social justice, liberty, equality of status and opportunity; and to promote among them all, fraternity assuring the dignity of an individual. Securing justice is thus an important basic feature of the Constitution. It is to provide the minimum requirements that are required for a man to survive, that acts like the National Food Security Act were in place.
The Bench, here, observed that the Constitution encompasses a comprehensive view of dignity. All aspects of dignity are thus protected under the Constitution, including the right to food and the right to privacy. When there was a conflict between the two, it was necessary to decide which of the two prevails. However, the Bench questioned why it could not instead be stated that there is no conflict, and both rights are to be ensured.
Invasion of privacy via storage of fingerprints
The Bench further observed that when fingerprints are collected and stored for Aadhaar, privacy is being invaded. When the counsel countered that a system involving biometrics will require its storage as well, the Bench observed that minimal intrusion for achieving legitimate interests must be ensured.
To this, it was argued that providing people with services and benefits to provide them with dignity and liberty was a legitimate state interest. Further, relevant excerpts from the Universal Declaration of Human Rights and the Keshavananda Bharati case on dignity were cited. Further, German cases which held that minimum conditions must be provided to ensure basic human rights.
The arguments for the State will continue on 19 April 2018.
The author is a lawyer and author specialising in technology laws. She is also a certified information privacy professional.
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