Supreme Court bench to resume Aadhaar hearing today: Constitutional validity of scheme to be questioned

The five-judge Constitution bench of the Supreme Court will continue its Aadhaar hearing on Thursday. The court will commence Day 2 of the hearing at 11.30 am.

A total of 29 petitions challenging the programme built around a 12-digit identity number have been filed in the Supreme Court.

The petitioners will continue their arguments against Aadhaar before the bench comprising CJI Dipak Misra, Justice AK Sikri, Justice AK Khanwilkar, Justice DY Chandrachud and Justice Ashok Bhushan.

According to the opening statements given by senior counsel Shyam Divan, the petitions, among other things, challenge the constitutional validity of the Aadhaar programme that operated until the bringing into force of the Aadhaar Act, 2016, The Aadhaar Act, 2016, and Section 139AA of the Income Tax Act.

In December 2017, the court had extended the deadline for mandatory linking of Aadhaar with various services and welfare schemes till 31 March, 2018. It also modified its earlier order with regard to linking Aadhaar with mobile services and said the deadline of 6 February 2018 for this purpose stood extended till 31 March. The same judges who had heard the matter then will again be hearing it now.

In August 2017, the Supreme Court in a unanimous 9:0 judgment had declared Right to Privacy to be a Fundamental Right. As far as Aadhaar is concerned, the judgment did not invalidate it in any way but left it for a future case to decide. But it did give a boost to anti-Aadhaar arguments which rely on privacy, as the government can no longer say that there is no Right to Privacy.

Proceedings on Day 1

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," said senior counsel Shyam Divan appearing for the petitioners challenging Aadhaar Act.

Representational image. Reuters

Representational image. Reuters

Telling the Constitution bench that a "People's Constitution will transform into a State Constitution", Divan said that the Aadhaar "electronic leash" is "connected to a central data base that is designed to track transactions across the life of the citizen".

Divan asked the court to direct authorities to destroy all data collected from 2009 till 2016, when the law was enacted to give the scheme a legal standing, reported The Economic Times. Prior to that, the data was collected on the basis of executive instructions, he 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.

Justice Chandrachud asked the petitioners if they would be satisfied if the Centre were to assure them that it would use data only for the limited purposes for which it was collected, to which Divan said, "Certainly not."

Divan said that the Aadhaar Act was brought as a money bill and pointed to "irregularity of the procedure in passing the law". At this, the Chief Justice said that the "larger question that emerges here is that once a bill is introduced as a money bill, can the court question the wisdom of the Speaker".

"Once the Speaker says that it is a money bill, then the court should not question the wisdom of the Speaker," said Chief Justice Misra.

At this, senior counsel P Chidambaram said that Lok Sabha members can't question it. But that does not mean the Speaker can certify any bill as a money bill.

#AadhaarMythBuster

Fact checking website AltNews questioned on Wednesday if there was an orchestration of public opinion on Aadhaar. It pointed to an editorial written by Nandan Nilekani which was carried by two of the largest English dailies, The Times of India and Hindustan Times. Further, it said, since the morning of 17 January, many Union ministers started tweeting using the hashtag #AadhaarMythBuster. There were also a large number of identical tweets supporting Aadhaar which were seen on Twitter.

With inputs from agencies


Updated Date: Jan 18, 2018 11:39 AM

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